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Vithaldas Girdharidas Vs. B.L. Shelar, Judicial Member, I.T. Apfellate Tribunal and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 5124 of 1976
Judge
Reported in[1980]122ITR859(Bom)
ActsEstate Duty Act, 1953 - Sections 63; Income Tax Rules, 1962; Constitution of India - Articles 226 and 227
AppellantVithaldas Girdharidas
RespondentB.L. Shelar, Judicial Member, I.T. Apfellate Tribunal and ors.
Advocates:A.M. Dabir, Adv.
Excerpt:
.....hand, he took the dilatory step which was undoubtedly on imprudent in the circumstances of the case, of first sending a telegram to the tribunal asking for a copy of the challan .it was undoubtedly unreasonable on his part to expect that the tribunal would in reply to his telegram sent on august 26, 1975, send him the challan forms and that the challan forms would be received within such time as would enable him to send his appeal memo along with the duplicate of the challan form to reach the tribunal well before august 30, 1975. we are, therefore, satisfied that there is no case made out whatsoever by the petitioner to condone the delay in the present case......sent a telegram to the appellate tribunal on august 26, 1975, requesting for a copy of the challan form for the purposes of payment of fees to be sent along with the appeal memo. he also sent a letter dated august 27, 1975, to the tribunal making the same request. on august 29, 1975, the petitioner took a demand draft on the local branch of the state bank of india for rs. 125 being the amount of fees. on the same day, he sent the appeal memo along with the said draft, by post, to the tribunal. the tribunal received the appeal memo and the draft on september 2, 1975. the petitioner thereafter received a copy of the challan from the tribunal on september 15, 1975. thereafter the petitioner paid another amount of rs. 125 in the local treasury under the challan form and sent the.....
Judgment:

Sawant, J.

1. The petitioner is one of the sons of one Girdharidas who dies on November 15, 1967, and as such is an accountable person within the meaning of the E.D. Act (hereinafter referred to as the 'said Act'). He filed a return on July 23, 1969, before the Asst. CED, Akola. The petitioner's case in his return was that the estate was below Rs. 50,000 and, therefore, no duty was payable on the same. However, the Assistant Controller, by his decision dated December 30, 1971, valued the share of the deceased for duty at Rs. 69,210. The petitioner thereafter preferred an appeal to the Appellate Controller, Akola, who by his decision dated March 12, 1975, allowed the appeal in part. This decision of the Appellate Controller was communicated to the petitioner on June 30, 1975. An appeal to the Appellate Tribunal from the decision of the Appellate Controller lies within 60 days under s. 63 of the said Act. The petitioner sent a telegram to the Appellate Tribunal on August 26, 1975, requesting for a copy of the challan form for the purposes of payment of fees to be sent along with the appeal memo. He also sent a letter dated August 27, 1975, to the Tribunal making the same request. On August 29, 1975, the petitioner took a demand draft on the local branch of the State Bank of India for Rs. 125 being the amount of fees. On the same day, he sent the appeal memo along with the said draft, by post, to the Tribunal. The Tribunal received the appeal memo and the draft on September 2, 1975. The petitioner thereafter received a copy of the challan from the Tribunal on September 15, 1975. Thereafter the petitioner paid another amount of Rs. 125 in the local Treasury under the challan form and sent the duplicate of the challan to the Tribunal on September 18, 1975. According to the petitioner, therefore, the appeal which he filed was in time. Before the Tribunal an objection was taken on behalf of the department that the appeal filed was delayed by 20 days.

2. It was the contention of the petitioner before the Tribunal that he having applied for a challan form on August 26, 1975, and thereafter having sent the demand draft along with the appeal memo on August 29, 1975, the appeal which he had filed was within 60 days from June 30, 1975. In the alternative it was argued that he had sufficiently complied with the requirement that the fees should be sent under the challan when he actually paid the second sum of Rs. 125 under the challan after September 15, 1975, and sent the duplicate of the challan to the Tribunal thereafter on September 18, 1975. He had also filed an affidavit praying for condonation of the delay if there was any. These contentions did not find favour with the Appellate Tribunal and the Tribunal pointed out that under the rules made under the I.T. Rules, 1962, Form No. 36 which was admittedly the form prescribed also in the present case contained a note in which it was clearly stated that the Appellate Tribunal will not accept cheques, drafts, hundies or other negotiable instruments. In the present case, admittedly, there was neither cash nor challan sent prior to August 30, 1975, and what was sent by post on August 29, 1975, was a draft which was contrary to the said note. The Tribunal further observed that the petitioner had ample time from June 30, 1975, to take steps to file the appeal and even on the date the he chose to send the telegram or to send the draft along with the appeal memo, he could have arranged either to send the cash or to present the appeal in person, the distance between the place where the petitioner resided and the office of the Tribunal being not far. In this view of the matter, the Tribunal held that the petitioner had not made our a sufficient case for condoning the delay. The Tribunal, therefore, rejected the application for condonation of the delay and in the result also dismissed the appeal as time-barred. It is this order dated August, 2, 1976, passed by the Tribunal which is challenged by the petitioner in this petition.

3. Mr. Dabir for the petitioner raised the same contentions which were raised before the Appellate Tribunal. He vehemently urged, firstly, that there was nothing in the Rules which dictated that the fees should not be sent by demand draft. Secondly, he contended that the note was merely directory and not mandatory. Thirdly, he submitted that in the circumstances of the case, the Tribunal should have held that there was sufficient compliance with the said note.

4. As regards the first contention, since admittedly the Form No. 36 under the I.T. Rules, 1962, is the form to be used in the present case, the form should be deemed to have been a part of the Rules and, therefore, the note contained in the firm will have to be read as part of the said Rules. It is, therefore, not correct to say that the Rules did not prohibit sending of fees by demand draft. Secondly, even this demand draft was sent by registered post and same was received by the Appellate Tribunal on September 2, 1975, i.e., after the period of limitation was over. As regards the contention that the provision in the said not on Form No. 36 was merely directory and not mandatory, it must be remembered that the Appellate Tribunal was bound to follow even the said directory provision assuming that the provision is directory and not mandatory, and if the Appellate Tribunal has acted unreasonably or improperly. We are also not satisfied that the petitioner acted diligently in the present case . Admittedly, the said note was part of Form No. 36 which is the form in which the appeal is to be preferred to the Appellate Tribunal. It is, therefore, legitimate to presume that the petitioner knew the requirements of preferring the appeal and in spite of the said clear direction contained in the said form, the petitioner chose to send the fees by demand draft. It is, therefore, difficult to accept the contention that the petitioner had acted diligently in preferring the appeal or following the remedy given to him by law. We are also not satisfied in the circumstances of the case that it could be said that there was sufficient compliance with the said rules. It has to be borne in mind that the petitioner having awakened to his right almost at the fag end of the period of limitation, chose to rely on correspondence with the Tribunal, instead of either going personally or sending the appeal through an agency so as to reach the Tribunal before August 30, 1975. On the other hand, he took the dilatory step which was undoubtedly on imprudent in the circumstances of the case, of first sending a telegram to the Tribunal asking for a copy of the challan . It was undoubtedly unreasonable on his part to expect that the Tribunal would in reply to his telegram sent on August 26, 1975, send him the challan forms and that the challan forms would be received within such time as would enable him to send his appeal memo along with the duplicate of the challan form to reach the Tribunal well before August 30, 1975. We are, therefore, satisfied that there is no case made out whatsoever by the petitioner to condone the delay in the present case. On the other hand, the conduct of the petitioner speaks much against such contention. In the circumstances, we do not think that the order passed by the Appellate Tribunal rejecting his prayer for condonation of delay or improper and requires any interference from his court while exercising its extraordinary jurisdiction under arts. 226 and 227 of the Constitution.

5. The result is that the petition is dismissed and the rule is discharged. There is no appearance on the other side; hence, there will be no order as to costs.


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