(1) The question referred under S. 66(2) of the Income-tax Act ran
'Whether on the facts and circumstances of the case, the Appellate Tribunal exercised its discretion in a judicial manner in refusing to excuse the delay in presenting the appeals.'
(2) Before we deal with the question, we are constrained to point out that paragraph 7 in the statement of the case was wholly uncalled for. Whether this court was right or not in directing the reference was not for the Tribunal to discuss; nor was it within the province of the Tribunal to draw the attention of this court to that feature in the case suggesting that the earlier order under S. 66(2) might require reconsideration. We cannot but express our displeasure at the attitude taken by the Tribunal, whose only duty at that stage was to comply with the direction of the court and draw up a statement of the case and refer the question which they had been directed to refer.
(3) That the order of the Tribunal, though in form was one refusing to condone the delay, was an order effectively terminating the appeal and therefore an order in appeal passed by the Tribunal, should be fairly clear. The principle laid down by this Court at page 11 (of ITR): (at p. 236 of AIR) in Commissioner of Income-tax v. Shahzadi Begum, : 21ITR1(Mad) which was approved of by the Supreme Court in Mela Ram and Sons v. Commr. of Income-tax : 29ITR607(SC) , should be sufficient authority for what we stated above. Part of the headnote in Melaram's case, : 29ITR607(SC) ran 'An appeal presented out of time is an appeal and an order dismissing it as time-barred is one passed in appeal.'
That there is a statutory provision for excusing or refusing to excuse the delay in the presentation of the appeal is really not very material in deciding what was the real nature of the order passed; and that, as we said, was one terminating the proceedings in appeal before the Tribunal and therefore an order passed in appeal. Normally we should have considered it needless to point all this out at this stage. Those were questions that could have been decided by this court, had it been in controversy at the stage of directing the reference under S. 66(2) of the Act.
(4) We have now to answer the question which has been referred to this court for determination.
(5) One thing we have to set out even at the initial stage is that we are dealing with the months July and August with 31 days each. That the statutory period of limitation was 60 days was never in issue. The specific case put forward by the appellant before the Tribunal was that she had been given wrong advice by the clerk that the period of limitation was two months, in that case two months each of 31 days. There was really no material for the Tribunal to disbelieve the statement, unless it be the Tribunal preceded on the assumption that every statement made by any appellant must be rejected as unworthy of credence.
Further, even in the order on the application under S. 66(2) directing the question to be referred to this court, this Court specifically drew the attention of the Tribunal to the fact, that the appellant was not bound to explain any portion of the period for which the law of limitation provided, in this case 60 days. The delay was only one day, and that day's delay alone had to be explained. In spite of that feature having been pointed out, the Tribunal made no attempt to go into the real question at issue, even when submitting the statement of the case, whether that day's delay after the expiry of the 60 days had been satisfactorily explained.
(6) In the circumstances of this case, we have no hesitation in holding that the discretion exercised by the Tribunal in rejecting the application of the appellant to excuse the delay was not based on the relevant considerations they had to bear in mind. It was not a case of judicial exercise of a discretion at all.
(7) We answer the question in the negative and in favour of the assessee. As the assessee has succeeded, she will get the costs of this reference. Counsel's fee Rs. 250.
(8) Answer in the negative.