JUDGMENT
H. Mahapatra and S.N.P. Singh, JJ.
1. The petitioner is the Laheriasarai Central Co-operative Bank Ltd., who was assessed to income tax against which the petitioner went in appeal before the Appellate Assistant Commissioner. The order of that appellate authority was received by the assessee on the 14th May, 1958. They wanted to file an appeal before the appellate Tribunal against that order and forwarded, by registered post, the memorandum of appeal in that prescribed
form on the 10th July, 1958, which vas received by the tribunal on the 12th of July. Though under the
provisions of the Act, the appeal in he prescribed form is to be accomapnied with a chalan showing a deposit of Rs. 100 in the treasury, no such fee had been deposited; but in its stead, an application was sent with the appeal to the effect that the assessee was exempted from payment of any fee, in accordance with the notification issued by the Bihar Government of; which communication was sent by the Assistant Registrar of the Co-operative Societies to the assessee. On the 17th of August, 1958, the tribunal’s Office intimated the assessee that the Bihar Government notification referred to by the assessee, was not applicable and the appeal was incompetent in absence of a deposit of Rs. 100. When the appeal was posted for hearing, the question of limitation was considered. But before that, on the 24th of August, 1958, three days after the receipt of the letter from the tribunal’s office, a sum of Rs. 100 was deposited in the treasury and the chalan in that respect was transmitted to the tribunal’s office. In addition to that, an application for condonation of the delay was made by the assessee on the 22nd of August, 1958, stating therein that the assessee was prevented by a bona fide impression arising from the communication received by the assessee from the Assistant Registrar of the Co-operative Societies, from making the deposit of the requisite fee of Rs. 100 at the time when the assessee presented the appeal before the tribunal. On the 22nd of February, 1960, the tribunal dismissed the appeal in limine holding that it was barred by time. In its view, the reason given by the assessee was not sufficient for condoning the delay. The assessee wanted the tribunal to refer the case under Sub-section (1) of Section 66 of the Income tax Act to this Court, but on its refusal to do so, the assessee came to this Court with an application under Sub-section (2) of that Section and obtained a rule by which the tribunal was directed to state the case to this Court framing the question for decision in the following term:
Whether in the facts and circumstances of this case the income tax Appellate Tribunal was justified in refusing to condone the delay in depositing the prescribed fee for the appeal.
2. We have stated the facts and the circumstances of the case already. It will appear therefrom that the assessee had really a bona fide misapprehension in its mind in regard to the payment of the requisite fee in connection with an appeal before the appellate tribunal. The letter of the Assistant Registrar, which was filed as Annexure C by the petitioner in this Court states:
Co-operative societies have been excepted from payment of all kinds of fees (Income tax court-fee, etc.). This may be produced before the court of law for exemption.
Reading that letter, one is naturally to have the impression that any kind of fee connected with the income tax is not leviable on the co-operative societies. In the order of the tribunal rejecting the petition of the assessee for condonation of the delay, it did not say that it did not believe that this impression, however, erroneous, was not bona fide on the part of the assessee with reference to the letter it received from the Assistant Registrar of the Co-operative Societies. In our opinion, the cause shown by the assessee was sufficient for the purpose of condonation of the delay.
3. Learned Counsel for the Commissioner of Income-tax, however, drew our attention to the order passed by the tribunal on the application of the assessee under Section 66(1) in which it said about the delay between the time the assessee received the communication from the office of the tribunal to the effect that the Government notification was not applicable to this case about the exemption and the date on which the deposit was made. We have shown that the communication was received by the assessee on the 17th of August 1958, and the deposit of Rs. 100 was made in the treasury by the assessee on the 21st of August, 1958. In a co-operative society, the receiving clerk cannot take any action. The necessary order for payment of the money is to be taken from the prescribed authority; and the process for that is bound to occupy some time. A period of three days between the date of receipt of the letter and the date of deposit does not appear to be too long. Secondly, this delay, of three days, was not commented upon by the tribunal in its order rejecting the application for condonation of the delay. That only appears at a subsequent stage in its order and, strictly speaking, is not relevant for consideration in connection with the justifiability or otherwise of its refusal to condone the delay.
4. It is well settled, whether a discretion vested in a tribunal under a statute has been exercised judicially or not is a question of law. Under Section 33(2A) the tribunal has the power to admit an appeal after the expiry of sixty days referred to in Sub-sections (1) and (2) of Section 33, if the tribunal is satisfied that there is sufficient cause for not presenting it within that period. In the instant case, the appeal was presented within the prescribed time; but as it was not accompanied by the required chalan showing the deposit of Rs. 100 in the treasury, it was not treated quite rightly, as a proper presentation of the appeal; and in that sense, a question of condonation of the delay arose before the tribunal. Whether certain circumstances would amount to a sufficient cause may ordinarily be a question of fact, though in some context, that itself will be a question of law. Even assuming that it is a question of fact, the other part for consideration is whether the discretion exercised by the tribunal in the matter of condonation of the delay has been so done judicially. We, therefore, consider that the question framed in the statement of case involves a question of law; and, as such, is to be determined in this case by us.
5. For the reasons given above, We answer the question that the tribunal was not justified in refusing to condone the delay in depositing the prescribed fee in this case. The appeal should be considered by the Tribunal on merits.
6. The application is accordingly disposed of. The petitioner is directed to pay a cost of Rs. 250 to the opposite party. The payment may be made to the learned junior counsel appearing for him within a month.