Judgment:
1. By this order, I shall dispose of this appeal of the Revenue filed against the order dt. 21st April, 1998 of CIT(A), Bathinda, for the asst. yr. 1991-92.
2. It was noticed that the order of CIT(A) was served on 12th May, 1998 and this appeal has been filed late by 2708 days, i.e., more than 7 years. The CIT-III, Ludhiana, vide his letter dt. 29th Sept., 2005 has requested for condonation of delay stating therein that ITO, Ward-2, Ferozepur, had sent the appeal to Tribunal through Shri Faquir Chand, Chowkidar, for delivering the same to the Tribunal vide his letter dt.
8th July, 1998. The appeal papers indicated that the same was delivered on 8th July, 1998. When asked, Shri Faquir Chand is unable to_remember the name of a person to whom it was delivered. Therefore, the CIT has pleadedthat the delay in filing the appeal may be condoned. These submissions made in the application were repeated by the learned Departmental Representative at the time of hearing of the appeal.
However, his attention was drawn to the judgment of Supreme Court in the case of Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and Ors. (2002) 173 CTR (SC) 300 : (2002) 253 ITR 798 (SC) and judgment of Punjab & Haryana High Court in the case of CIT v.Ram Mohan Kabra .
3. The learned Counsel for the assessee, on the other hand, stated that delay in filing the appeal in this case is inordinate and, therefore, the case does not justify condonation of delay. He also referred to the recent decision of Tribunal, Amritsar Bench, Amritsar, in the case of Jagdish Raj Chauhan, Sohagwantl & Guibachan Singh (AOP) v. ITO in ITA Nos. 234 to 239/Asr/2001, for the asst. yrs. from 1989-90 to 1991-92 [reported at (2006) 99 TTJ (Asr) 45Ed. where delay for six months in filing the appeals has not been condoned by relying on the judgment of Supreme Court in the cases of Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil (supra) and judgment of Punjab & Haryann High Court in the case of CIT v. Ram Mohan Kabra (supra).
4. I have heard both the parties and considered the rival contentions, examined the facts, evidence and material on record. As per provisions of Sub-section (3) of Section 253 of the IT Act, 1961, every appeal to the Tribunal shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the CIT, as the case may be. Thus, the limitation period for filing the appeal is specified in the statute itself. The expression used in section is 'shall'. Therefore, the law mandates that appeal to the Tribunal must be filed within the limitation period specified therein.
Sub-section (5) of Section 253 vests power on the Tribunal for condoning the delay in filing the appeal, if it is satisfied that there was sufficient cause for not presenting it within the limitation period. Therefore, the exercise of discretion vested with the Tribunal is subject to appellant satisfying the Tribunal that delay was caused due to a sufficient cause. Now in this case, we find that the approach of the Revenue in explaining the delay in filing the appeal is lackadaisical. Firstly, the appeal was sent through a Chowkidar, who hardly knew the importance of filing these papers within time. The appeal should have been sent through a responsible official like inspector or even through a clerk or some other responsible educated person working in the office of an ITO. Even after the said Chowkidar returned to the office of ITO, nobody tried to verify whether the said appeal was delivered in the Tribunal or not because even the dispatch register of the ITO sent along with letter dt. 23rd June, 2005 for service in the Tribunal does not bear any signature of the officer/authorized official of the Tribunal. No evidence indicating receipt of the appeal by any person has been filed before the Tribunal.
A copy of the dispatch register merely shows that the same was given to Faquir Chand. Therefore, it only shows that AO did not even care to find out whether the said appeal was delivered or not.
5. Further, the assessee had also filed an appeal in ITA No.364/Asr/1998 for the same assessment year. When the appeal of the assessee came up for hearing on 27th June, 2005, it came to light that appeal filed by the Revenue has not been received in the Tribunal.
Therefore, the learned Departmental Representative was given an opportunity to furnish documentary evidence in support of appeal filed by the Revenue. On 1st Aug 2005, the learned Departmental Representative filed an affidavit of Shri Ashok Bajaj, ITO stating that appeal was sent through Shri Faquir Chand, Chowkidar and he did not know to whom the said appeal was delivered. Thus, the Revenue learnt the fact that appeal was not delivered to the Tribunal on 27th June, 2005 itself. It should have taken immediate steps in filing a fresh appeal with a request for condonation of delay. Still the present appeal has been filed, on 10th Oct., 2005, i.e. after more than 3 months. This shows a very casual and non-serious approach of the Department and the delay appears to be an act of gross negligence.
6. In this context, it would be appropriate to refer to some of the judicial pronouncements on the issue of delay in filing the appeals. In the case of Hind Development Corporation v. ITO , the Calcutta High Court held that a Tribunal can condone the delay if there was sufficient cause for the delay in the submission of the appeal. In the case of Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and Ors. (supra) it was held that while exercising discretion under Section 5 of the Limitation Act, 1963, to condone delay for sufficient cause in not filing the appeal within the period prescribed, Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. The Court observed that where is in the former consideration of prejudice to the other side will be a relevant factor and calls for a more cautious approach, in the latter case no such consideration may arise and such a case deserves a liberal approach. Now in the present case delay is not of a few days but of more than seven years. Besides, there is absolutely no valid explanation/reason for the delay. In the case of CIT v. Ram Mohan Kabra (supra), the Hon'ble Punjab & Haryana High Court has held that where the legislature spells out a period of limitation and provides for power to condone the delay as well, such delay can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. It is settled principle of law that provisions relating to the specified period of limitation must be applied with their rigour and effective consequences. In this case delay for filing the appeal late for only a few days was not condoned by the Hon'ble Punjab & Haryana High Court. In the case of Asstt. CIT v. Taggas Industries Development Ltd. (2002) 75 TTJ (Cal) 569 : (2002) 80 TFD 21 (Cal), Tribunal, Calcutta Bench, Calcutta did not condone the delay for filing the appeal late by 13 days because the delay was not due to a sufficient cause. Thus relying on the above judgments and the detailed reasons mentioned above, hold that Revenue has failed to explain that delay in filing the appeal was due to a sufficient cause. Therefore, the delay in filing the appeal being not due to sufficient cause, the appeal of Revenue is unadmitted and dismissed on this ground itself.
Order accordingly.