1. These are three references under Section 66(2) of the Indian Income-tax Act, all at the instance of the assessee petitioner in the facts and circumstances hereinafter stated, relating to the assessment years 1949-50, 1950-51 and 1951-52. This Court by its order dated 6-11-1958 called upon the Income-tax Tribunal to state the case and to refer the following questions for decision of this Court.
'(1) Whether in the facts and circumstances of the case, there was not sufficient cause for not presenting the appeal within the prescribed period.
(2) Whether the delay in postal delivery can beconsidered as constituting sufficient cause for notpresenting the appeal within the prescribed period'.
In pursuance of this order of the Court, a statementof case was submitted by the Income-tax Tribunalon 22-6-1959. Hence, these references which wereanalogously heard.
2. The matter arose in the following circumstances; on 5-2-1954, the assessee received the order of the Appellate Assistant Commissioner. On the 56th day from the said date on 2-4-1954, the assessee sent three appeals against the said order by registered post addressed to the Income-tax Tribunal, then at Bombay, in one packet. On 7-4-1954 the said three appeals were received by Tribunal. The last date on which the appeals were to be filed was 6-4-1954 and thus the appeals reached the Tribunal out of time by one day. Thereafter the assessee was given notice why the appeals should not be dismissed as time barred. On 5-5-1955 the assessee made an application for condonation of delay under Section 33(2) of the Act. The same day the said application was heard by the Appellate Tribunal who found thatthere was no sufficient cause shown to condone the delay and accordingly the delay was not condoned and in the result the appeals were dismissed.
Thereafter the assessee made an application under Section 66(1) of the Act, requiring the Tribunal to draw up a statement of case and refer certain question of law, including the two questions mentioned above, to the High Court. On 29-9-1955 the Tribunal rejected the said applications, for the reason that the refusal to condone delay, -- on the ground that there was no sufficient cause shown as aforesaid, -- was a finding of fact; and as such no question of law arose and accordingly the said application under Section 66(1) of the Act was rejected by the Tribunal. On 10-10-1955 the said order dated 29-9-1955 was received by the assessee and thereafter on 2-4-1956 the assessee made these applications under Section 66(2) of the Act on the ground stated in the petitions in support thereof. This Court, by an order made on 6-11-1958 directed the Tribunal to state a case, expressing the opinion that the two questions mentioned above do arise for the Court's opinion on the facts of this case. Thereafter on 22-6-1959 the Tribunal submitted a statement ot case referring the said question to the High Court as aforesaid.
3. The only point for decision herein is the point of limitation. In view of the latest Full Bench decision in Govinda Choudhury v. Commr. of Income-tax, Bihar and Orissa, Patna, (S. J. C. Nos. 4 and 5 of 1956 D/- 11-4-1960): : AIR1960Ori187 overruling the previous Division Bench decision ot this Court in Sri Popsing Rice Mills, Bhadrak v. Commr. of Income-tax, Bihar and Orissa : 17ITR420(Orissa) . I am or opinion that the said points referred to this Court for opinion arc not questions of law. It is a matter of discretion for the Tribunal to condone delay on sufficient cause being shown as it may think tit in the facts and in the circumstances of the particular case. It is, thus, a question of fact in each case and no point of law is involved for reference to the High Court. If, however, the decision in the case of : 17ITR420(Orissa) was upheld, then of course it would have been a question of law to decide whether delay in postal delivery could be considered as constituting sufficient cause for not presenting the appeal within the period of limitation.
Even assuming that the questions referred are questions of law, I am of opinion that there was no error On the part of the Tribunal in not condoning the delay in its discretion. In fact, as appears from the assessee's own petition for condonation of delay in I. T. A. Nos. 85, 86 and 87 of 1954-55 dated 5-5-1955, the assessee does not appear to have explained why he waited for 56 days after he received the order on 5-2-1954, as aforesaid. It further appears from a letter dated 9-4-1954 from the Assistant Registrar of the Appellate Tribunal, Bombay, that the appeals were received by him on 7-4-1954, that is to say, one day beyond the period of limitation. In view of Sub-rule (2) of Rule 7, which provides that a memorandum of appeal, sent by post, shall be deemed to have been presented to the Registrar or to the Officer authorised by the Registrar, on the day on which it is received in the office of the Tribunal at Bombay, it is clear that the appeals were received by the Registrar out of time. We have discussed the general mandatory aspect of the provisions of the Act and the rules thereunder in our decision in (S. J. C. Nos. 4 and 5 o 1956): AIR 1960 Ori 187 referred to above.
4. Mr. D. Bhuyan, learned counsel On behalf of the assessee petitioner, strongly urged that the provisions of Section 33(2A) of the Act giving power to the Tribunal to condone delay should be liberally construed. In support of his contentions he relied on a decision of the Supreme Court in Dinabandhu Sahu v. Jadumani Mangaraj AIR 1954 SC 411 which was decided in the context of the provisions of Section 85, Proviso of the Representation of the People Act, 1951 where the petitioner under Section 81 of the Representation of the People Act had presented at the post office the petition addressed to the Election Commission one day earlier and the said petition reached the Election Commission one day later than due date.
It was held that even if the matter load to be judged under Section 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delay, the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice, when no negligence nor inaction nor want of bona tides is imputable to the petitioner: the order condoning delay was on the facts a proper one to pass under the Proviso to Section 85. It appears that Section 85 of the Representation of the People Act, 1951 runs as follows :
'Provided that if a person making the petition satisfied the Election Officer that sufficient cause existed for his failure to present the petition within the period prescribed therefor, the Election Commission may in its discretion condone such failure.'
It was in exercise of the discretion vested in it under this provision that the Election Commission condoned the delay. In the present case, however, there is a statutory liability on the assessee to present the memorandum of appeal within a time fixed by the statute itself and Sub-rule (2) of Rule 7 makes it imperative that in case of presentation by post it shall he deemed to have been presented on the day on which it is received in the office or the Tribunal at Bombay. It is on sound principle that in enforcing revenue laws, such clearly mandatory provisions should be made imperative. Thus the Supreme Court decision does not support the assessee's contentions.
5. The learned counsel for the assessee also contended that though a Court of appeal would not interfere, if the discretion, which is a Judicial act, has been judiciously exercised by the lower Court : but if it is found to have been exercised arbitrarily or on a wrong conception of law, it is equally the duty of an appellate Court to interfere with it and pass an order which would be in the circumstances in consonance with justice and in accordance with law. In support of this contention the learned counsel relied on a decision of the Lahore High Court in Arura v. Karam Din. AIR 1947 Lah 76. It, however, appears that the said decision was in a second appeal from a decree passed by the District Judge. There is no doubt that a Second appellate Court can also go into questions of fact in certain cases for cogent and compelling reasons. In the present case the scope of Section 66 (2) of the Income-tax Act is limited. The jurisdiction of the High Court in an application under Section 66(2) is different from, its jurisdiction in a second appeal.
6. In the present case, the assesses appears to have no justification for the delay in sending the appeals not until the 56th day from the date of receipt of order of the Appellate Assistant Commissioner. There is no question of error of tact or misapprehension as to the position in law which could have been some explanation for the delay. The Madras High Court in Krishna v. Chatheappa ILR 13 Mad 269 observed that the court is not prepared to hold that a mistake in law is under no circumstances a sufficient cause within the meaning of Section 5 of the Limitation Act. The learned Counsel for the assessee in course of his argument relied on the said Madras case, which, in my opinion, has also no application to the facts and circumstances of the present case. There is no question of mistake in law in the present case.
7. The answer to the first question is accordingly in the affirmative, that is to say, that in the facts and circumstances of the case there was not sufficient cause for not presenting the appeals within the prescribed period; and the answer to the second question is in the negative, that is to say, that the delay in postal delivery cannot be considered as constituting sufficient cause for not presenting the appeals within the prescribed time.
8. The result, therefore, is that all the three references are rejected with costs. A consolidated hearing fee is assessed at Rs. 100/-.
9. I agree.
J.K. Misra, J.
10. I agree.