1960 PLP 408 (PTD)

Income‑tax Act (XI of 1922), Ss. 33, 66 (2)‑Delay in appeal to Appellate Tribunal‑‑Application for condonation‑Appellant whether should explain delay of entire period‑Order refusing to condone delay‑Whether order in appeal‑Reference to High Court- Order directing Tribunal to state case‑Duty of Tribunal‑No Jurisdiction to discuss propriety of order. Where the High Court directs the Appellate Tribunal to draw up a statement of a case and refer a question of law arising out of the case under section 66(2) of the Indian Income‑tax Act, 1922, the only duty of the Tribunal at that stage is to comply with the direction of the High Court. It is not for the' Tribunal to discuss whether the High Court was right or not in directing the reference ; nor is it within the province of the Tribunal to draw the attention of the Court to that feature in the case, suggesting that the earlier order under section 66(2) may require reconsideration. Where the Appellate Tribunal in form passes an order refusing to condone the delay in the presentation of an appeal under section 33, that order is an order effectively terminating the appeal and is therefore an order in appeal. That there is a statutory provision for excusing or refusing to excuse the delay in the presentation of the appeal is not very material in deciding what is the real nature of the order passed. In an application for the condonation of delay in presenting an appeal, the appellant is not bound to explain any portion of the period for which the law of limitation provides. Where the delay is only of one day, that day's delay alone has to be explained. Where; in an application for the condonation of delay in the presentation of an appeal, the specific case put forward by the appellant before the Tribunal was that she had been given wrong advice that the period of limitation was two months and there was one day's delay in the presentation of the appeal as a result thereof and there was no material for the Tribunal to disbelieve the statement; Held, on the facts, that in rejecting the application the dis cretion of the Tribunal was not exercised judicially as it was not based on the relevant considerations the Tribunal had to bear in mind. Commissioner of Income‑tax v. Shahzadi Begum (1952) 21 I T R 1, and Mela Ram & Sons v. Commissioner of Income‑tax (1956) 29 I T R 607 fol. In compliance with the order of the High Court of Judicature at Madras in C.M.P. Nos. 3049 and 3050 of 1953, dated the 18th November, 1953, 'under section 66(2) of the Indian Income- tax Act, we hereby draw up a consolidated statement of the case, and refer the question of law set out in those orders. Both the parties agree that all facts have been correctly set out and that no material facts have been omitted therefrom.

2. The applicant, hereinafter referred to as the assessee, is the widow and legal heir of the late S. Ramanujam whose assessment is the subject‑matter of the references presently under considera tion and they relate to the assessment years 1948‑49 and 1949‑50, the "previous years" being the years ending on March 31, 1948, and March 31, 1949.

3. The late S. Ramanujam was a leading lawyer of Madurai and was assessed to income‑tax for several years. He died on June 16, 1948. The assessee thereupon applied to the Income- tax Officer on August 3, 1949, for the reliefs provided under section 25(3) of the Act in respect of the income of her husband relating to the period April 1, 1948 to June 16, 1948, viz., that the income of the said period assessable in 1949‑50 assessment year was exempt from taxation and that the said income should be substituted for the income assessed in the assessment year 1948‑

49. The Income‑tax Officer denied both the reliefs prayed for by the assessee. On appeal, the Appellate Assistant Commissioner agreed with the Income‑tax Officer, and confirmed the Income‑tax Officer's orders. The Appellate Assistant Commissioner's consolidated order was served on the advocate appearing on behalf of the assessee on July 16, 1951.

4. The assessee then filed appeals before the Appellate Tribunal. The said appeals were filed on September 15, 1951, and were thus barred by limitation by a day. Along with the appeal petition (annexed hereto as annexures ` A‑1 ' and ` A‑2 ' and forming part of the case) signed by the assessee and also by the very advocate who had received the aforesaid Appellate Assistant Commissioner's order, the assessee filed with each of the appeals an unverified application, dated September 14, 1951, (annexed hereto as annexure ` B ' and forming part of the case) in which she put forward the excuse that` she was misled by her clerk into thinking that the period of limitation was two months and not 60 days. The clerk's evidence accepting responsibility, by means of an affidavit or otherwise, is not on record, for the statement attributed to him, nor has the assessee sworn to these facts in an affidavit or a verified statement. On these facts, the Tribunal, inter alia, held, in its order, dated September 25, 1952, (annexed hereto as annexure ` C ' and farming part of the case); (1) that the assessee was merely attempting to 'make a scape goat of the clerk without unequivocally accepting responsibility herself. (2) that the story put forward by the assessee in her applica tion unsupported by an affidavit was not believeable and was only an afterthought.

5. The Tribunal accordingly declined to admit the appeals after the expiry of 60 days.

6. The question directed to be referred is; "Whether on the facts and circumstances of the case, the Appellate Tribunal exercised its discretion in a judicial manner in refusing to excuse the delay in presenting the appeals ?"

7. Their Lordships may also be pleased to consider the question of law whether a reference under section 66 lies against the order of the Tribunal declining to condone the delay and admit the appeal after the admitted expiry of 60 days. T. V. Viswanatha Aiyar for the Assessee. C. S. Rama Rao Sahib for the Commissioner.