Madhava Reddy, Actg. C.J.
1. This petition under s. 256(2) of the I.T. Act, 1961, is against an assessee in R.A. No. 555/Hyd/1979 on the file of the ITO, A-Ward, Nellore, in respect of assessment for the assessment year 1968-69. By the time this petition was filed, on March 5, 1981, for referring the question to this court under s. 256(2), the assessee had died. Only on August 19, 1981, a petition to bring the legal representatives of the assessee on record was filed. Since this petition is filed against a dead person, the question of bringing his legal representatives on record does not arise. Sri Suryanarayana Murthy, learned counsel for the Revenue, contends that under s. 159 the proceedings taken against the deceased assessee may be continued against his legal representatives. This is no doubt true. But, the proceeding should have been initiated against the deceased before his death, as envisaged under s. 159(2)(a) of the I.T. Act. As already stated, while the assessee died on November 13, 1980, as stated in C.M.P. No. 10511 of 1981, the petition I.T.C. No. 53 of 1981 was filed on March 5, 1981. Hence, the question of including the legal representatives does not arise. The question of knowledge of the Department as to whether the assessee is alive or deal has no relevance in determining whether the petition is maintainable. That could have relevance only with regard to a petition to bring the legal representatives of the deceased respondent who was alive on the date when the I.T. case was filed and not to a case where the petition was filed against a dead person. I.T.C. No. 53 of 1981 is, therefore, rejected.
[At the request of the Standing Counsel for the Department, the matter was set down again for hearing on August 6, 1982]
Madhava Reddy, Actg. C.J.
2. I.T.C. No. 53 of 1981 was presented on March 5, 1981, by the Commissioner of Income-tax, Andhra Pradesh, Hyderabad, against a dead person, of course, without knowledge of the fact that he had died by that date on November 13, 1980, when the petition (C.M.P. No. 10511 of 1981) to bring on record the legal representatives of the deceased-respondent came up before us. We dismissed the same, holding that the question of bringing on record the legal representatives of the deceased-respondent, who was dead even on the date of the presentation of the I.T. case, does not arise. Since the sole respondent was dead even on the date of the presentation of the I.T. case, we dismissed I.T.C. No. 53 of 1981, by our judgment, dated August 4, 1982. Unfortunately, the Full Bench decision of the Madras High Court in Gopalakrishnayya v. Lakshmana Rao  49 MLJ 590; AIR 1925 Mad 1210 [FB], was not brought to our notice. That Full Bench has clearly laid down that 'if an appeal is presented against a person who was dead on the date of presentation, the court may, under section 153, Civil Procedure Code, permit the case title to be amended or may return the appeal memorandum for amendment and re-presentation'. We prefer to follow the second of the two alternatives open to the court in such a situation and direct the return of the appeal memorandum.
3. Mr. Suryanarayana Murthy, the learned standing counsel for the Revenue, however, contends that we should adopt the first alternative suggested in the above Full Bench decision and permit him to amend the cause title and that the Full Bench held that the court was competent, in exercise of the general power vested in it under s. 153 CPC, to permit correction of any defect of error in any proceeding in a suit, and appeal being a continuation of the suit, in an appeal as well. We are unable to accede to this request for more than one reason. Firstly, it involves the determination of the question whether a proceeding under s. 256(2) of the I.T. Act, 1961, constitutes a continuation of the assessment proceedings and is akin to the continuation of an appeal in a suit. Secondly, if it is a continuation of the assessment proceedings and is akin to an appeal in a suit, this I.T. case would be deemed to have been presented against the persons sought to be brought on record on the date when the application to bring them on record by way of substitution was made. In the instant case, such an application was made for the first time on August 19, 1981. That would be clearly beyond time. Such substitution would not result in deeming this I.T.C. as having been filed against the persons sought to be substituted on the date when it was first filed against the dead person, i.e. on March 5, 1981. Hence, the question of condonation of delay in this I.T.C. would have to be considered. Condonation of delay in presenting any petition, appeal or revision or even a case under s. 256(2) of the I.T. Act must depend upon the facts and circumstances of that particular case. Although Mr. Suryanarayana Murthy, the learned counsel for the Revenue, contends that even without any formal application, the delay may be condoned, as laid down in Kartar Singh v. Chetan Singh (Letters Patent Appeal No. 213 of 1966 of 1966 decided on May 7, 1969 by Mehar Singh C.J.and P. C. Jain, J.) reported in  71 Punjab Law Reporter, page 969, we are not persuaded to adopt that course for the simple reason that, in every case when the court is required to consider the question of condonation of delay in presentation, it has to justify itself whether sufficient cause has been shown or not. By efflux of time, the parties acquire certain rights. It is only upon sufficient cause being shown, can such right be unsettled by condoning the delay and reopen for reconsideration the merits of the appeal or other proceeding, which was presented belatedly. Hence, the delay in filing the case cannot be condoned lightly. The respondent will have a right to oppose the application for condonation of delay. Before condoning the delay, the court will have to satisfy itself, on the basis of the material on record, whether sufficient cause has been shown or not; it should not condone the delay as a matter of course. In support of his contention that condonation of delay is a matter of course, Mr. Suryanarayana Murthy relies upon the observation of the Full Bench, which is to the following effect :
'If the appeal memorandum is not allowed to be amended, the party may apply for a refund of the spoilt stamp and may present a fresh appeal. In any case the court will, if the appeal is out of time against the legal representative, have to excuse the delay in presentation before it can proceed to hear the appeal.'
4. That passage from the Full Bench decision has to be understood in the context in which it was made and the ultimate order made in that very case. The words 'the court will have to Excuse the delay in presentation' did not, in our opinion, intends that whatever may be the facts and circumstances of a particular case, the court would have necessarily to condone the delay nor could they have intended that, upon an oral representation and without insisting upon a formal application for condonation of delay under s. 5 of the Limitation Act, the court should condone the delay, for the words 'the court will have to Excuse the delay in presentation' are followed by further words 'before it can proceed to hear the appeal.' Ultimately, the Full Bench in the very case returned the matter to the admission court with the expression of its opinion and with an observation, 'it is a matter for its discretion whether it could excuse the delay in presentation.' This clearly emphasises that the matter of condonation of delay is not a matter of course. It is a matter left to the discretion of the court. The Full Bench has also held that, after the memorandum of appeal is re-presented, the court, before it can proceed to hear the appeal, will have to excuse the delay in presentation and that is a matter which lies in the discretion of the court. Even if the Punjab High Court has held otherwise, bound as we are by the law laid down by the Full Bench decision of the Madras High Court, we hold that the question of condonation of delay has to be decided on the basis of the material on record, when it is properly raised.
5. Sri Suryanarayana Murthy, next placed reliance upon the decision of the Bombay High Court in Alabhai Vajurbhai v. Bhura Bhaya  AIR 1937 Bom 401. That decision merely purports to follow the Full Bench decision of the Madras High Court referred to above and does not lay down anything different from what is stated in the Full Bench decision. However, it preferred to adopt the first alternative referred to therein. The Bombay High Court did not lay down that the return of the memorandum of appeal is incorrect.
6. In Subbamma v. Seshamma  2 An WR (Sh. N.) 42 (CMP 7732/58, dt. 28-8-1959), Seshachalapathi J., sitting singly, referring to the above Full Bench decision, only stated that the court has power under s. 153, CPC, to allow the appellant therein to amend the cause title by inserting the names of the deceased-respondent's legal representatives. The appeal will then be treated as one presented against the legal representatives on the date of the amendment and the delay in such presentation may be excused, if there ar sufficient grounds for doing so. The learned judge did not and obviously could not hold, sitting singly, that return of the plaint would be illegal or without jurisdiction. The learned judge clearly held that the delay can be condoned only if there are sufficient grounds for doing so. In State of Hyderabad (now A.P.) v. Kista Reddy  2 An. WR (Sh.N) 30, Jaganmohan Reddy, J. (as he then was), only reiterated what the Full Bench of the Madras High Court had laid down and held that the court, which deals with an appeal arising out of a suit, has full power under s. 153, CPC to direct an amendment of the appeal memorandum. Nothing stated therein prohibits the adoption of the second alternative declared as permissible by the Full Bench of the Madras High Court. In Khaja Begum v. Gulam Mohiuddin, : AIR1976AP65 , a Division Bench of our High Court was dealing with a suit presented against a dead person. In that case, after the amendment was permitted, suit was held to have been filed against the persons substituted on the date when they were sought to be substituted. That decision does not really deal with a situation with which we are now concerned. In a case where an appeal or a proceeding is presented against a dead person, the question is not one of substitution of the legal representatives on record is filed within the period allowed calculated from the date of the death of the person. In such a case, the question is whether an appeal or a proceeding could be deemed to have been presented on the date when the proper person is added by way of substitution or amendment. Then the question arises whether the delay in presenting such an appeal or proceeding should be condoned. All these matters can be considered only if a proper petition for condonation of delay is filed along with the amended or fresh proceedings or memorandum of appeal or a petition under s. 256(2) of the I.T. Act, as in this case. On the facts mentioned in such a petition and after hearing the other side against whom the proceeding is sought to be taken, the court would have to consider the question of condoning the delay and only if there is sufficient cause, the delay can be condoned. We do not wish to express any opinion about it; much less when all these matters are to be considered, would be justified in condoning the delay on the oral request of the petitioner by allowing the amendment to be carried out by substituting the legal representatives. The only modification we make in the order, dated August 4, 1982, is that the I.T.C. instead of being rejected, will have to be returned as income patent against a dead person. Ordered accordingly.