ORDER
Garg, VP
This is an appeal by the revenue against the order of the Commissioner (Appeals) for the assessment year 1991-92.
2. The appeal is late by 13 days beyond the statutory fixed time limit of 60 days from the date of receipt of the order of the Commissioner (Appeals) by the Commissioner. The relevant dates are
Date of receipt of Commissioner (Appeals)’s order
29-8-1995
60 days expired on
27-10-1995
Appeal filed on
9-11-1995
Delay
13 days
A petition for condonation was filed by the assessing officer on 10-11-1995 giving the following reasons in which the entire delay was attributed to Commissioners office, which reads as under :-
“27-10-1995
–
That the festive season hampered the normal office work for a long days which resulted in submission of appeal scrutiny report delayed to the higher authorities and as such no authorisation was received from the Commissioner on that day.
28-10-1995
–
It was a holiday being Saturday.
29-10-1995
–
It was a holiday being Sunday.
30-10-1995
–
That no authorisation for filing of second appeal before the Income Tax Appellate Tribunal, Calcutta in the matter was received from the Commissioner.
31-10-1995
–
Do
1-11-1995
–
That no authorisation for filing of second appeal therefore the Income-tax Appellate Tribunal, Calcutta in the matter was received from the Commissioner.
2-11-1995
–
Do
3-11-199
–
Do
4-11-1995
–
That it was a holiday being Saturday.
5-11-1995
–
That it was a holiday being Sunday.
6-11-1995
–
That no authorisation for filing of second appeal before the Income Tax Appellate Tribunal, Calcutta in the matter was received from the Commissioner on that day
7-11-1995
–
That it was a holiday being ‘Guru Nanak’s birth day’.
8-11-1995
–
That necessary authorisation for filing of second appeal before the Income Tax Appellate Tribunal, Calcutta was received from the Commissioner at the last hour. Hence, papers complete in all respects could not be prepared on that day.
9-11-1995
–
That necessary papers complete in all respects could not be prepared on that day.
In the circumstances, I am filing the appeal in question before your honour today on 10-11-1995 which may kindly be accepted after condonation of delay of 14 days.”
Another explanation on 29-6-2000 was given by the Commissioners office giving an impression that the delay was partly as assessing officer’s level and partly at the level of the Commissioners office by supplementing the reasons in the following manner :
“2. The reasons for delay at the legal of the assessing officer and the Range D.C. from 28-11-1995 to 1-11-1995 for 5 days as shown in para-1 above are chronologically tabulated as under for the sake of convenience:
28-10-1995
–
Saturday
29-10-1995
–
Sunday
30-10-1995
–
Authorisation not received by the assessing officer from the Commissioner, as Appeal Scrutiny Report was prepared and sent by assessing officer to the Range D.C. on this day.
31-10-1995
–
Authorisation not received by the assessing officer from the Commissioner, as Range D.C. prepared comments on this day.
1-11-1995
–
Authorisation not received by the assessing officer from the Commissioner, as Range D.C. submitted the Appeal Scrutiny Report to the Commissioner on this day.
3. Now, I proceed to explain the delay for 7 days from 2-11-1995 to 8-11-1995 occurred in the office of the Commissioner, WB-VI, Calcutta datewise as per record as under :
2-11-1995
–
The office prepared judicial file on this day.
3-11-1995
–
Judicial file put up to Income Tax Officer, Hqrs. Judl. Who prepared the note for the Commissioner.
4-11-1995
–
Saturday
5-11-1995
–
Sunday
6-11-1995
–
Note prepared by the Income Tax Officer, Hqrs. Judl. Put upto Commissioner who gave direction to file 2nd appeal.
7-11-1995
–
Holiday on account of ‘Guru Nanak’s Birth day.
8-11-1995
–
Requisition/authorisation for filing 2nd appeal sent to the assessing officer.”
3. The internal procedure which can be culled out from the reasons given aforesaid for filing the 2nd appeal seems to be :
(i) assessing officer prepares the scrutiny report and suggests whether 2nd appeal should be filed or not and that report is sent to the D.C.;
(ii) D.C. prepares his comments on such report and sends the matter to Commissioner, i.e., Commissioner of Income Tax;
(iii) The office of the Commissioner prepares the judicial file;
(iv) Such judicial file is sent to Income Tax Officer, HQ. (Jdl.) who prepares the note for Commissioner;
(v) The file with the note of the Income Tax Officer, HQ. (Jdl.) is then put to Commissioner for direction/authorisation to file the appeal;
(vi) Requisition is sent for such authorisation to the assessing officer;
(vii) The assessing officer, prepares the papers – copies of the assessment order Commissioner (Appeals) order, grounds of appeal before the Commissioner (Appeals), etc. etc.
(viii) Then it again goes back to the Income Tax Officer, HQ (Jdl.) for filing the appeal, who along with his letter sends the appeal to the Asstt. Registrar, Income Tax Appellate Tribunal.
4. Each stage takes time at least a day, according to the revenue, if not more. In such circumstances we fail to understand why the process for filing the appeal is not started well in advance so that everything is completed within the statutory fixed time of 60 days and if the delay is there for any unforeseen circumstances, it can be condoned. When the department knows that the process takes time and does not wake up the last day of the limitation period and even after that as it was in this case – the last day was 27-8-1995 but assessing officer himself prepared the scrutiny report on 30-8-1995, it cannot be a sufficient and reasonable ground for seeking condonation. Law helps those who helps themselves and are vigilant and not those who sleep over the matter and wake up when the time has already run out of the train had left the station. How can one complaints of the train having left when he himself was not ready and put on motion himself for going to the station? The sleeping was his choice and not by force of circumstances. As there is no unforeseen circumstances as shown to have been existed at the relevant time, we do not find any merit in the revenue’s petitions for condonation.
5. It might be true that there was no mala fide intention of dilatory tactics in delaying the filing of appeal, but at the same time no reason at all has been brought on record to justify the delay and the timely action by the assessing officer or as the case may be the Commissioner, who is the authority to direct the filing of appeal and at whose instance 2nd appeal is to be filed. Therefore, the decisions of the Supreme Court in N. Balakrishnan v. M. Krisnamurthy AIR 1998 SC 3222 and Collector, Land & Acquisition v. Mst. Katiji (1987) 167 ITR 471 (SC) would be of no help to the assessee.
6. Their Lordships of the Supreme Court in the case of Calcutta Municipal Corpn. v. RK Saraf AIR 1999 SC 738 have held that even if the court should be liberal in condonation of delay, it should be inexcusable unless sufficient cause is shown. It is not the law that when an application seeking the condonation of delay is filed by the state or any authority, the court must invariably condone the delay irrespective of whether sufficient cause is shown or not. Further, the Supreme Court in the case of State of West Bengal v. Howrah Municipality AIR 1972 SC 749 has held that the department should give sufficient reasons for not filing the appeal within the period stipulated in the Act and no circumstances or event which arise ‘after the expiry of limitation can constitute such cause. In view of the facts and circumstances of the present case leading to the delay for filing of appeal before the expiry of the period of limitation as prescribed under section 253(3) of the Act, the decision of the Supreme Court in the aforesaid case directly applies.
7. In view of the aforesaid, we have no option but to reject the petition of the department for condonation of delay in filing of the appeal beyond the prescribed statutory period.
8. In the result, the appeal is dismissed in limini, that is without going into the merits of the grounds raised therein.
