TMI Blog1996 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the application for certified copy was made on 1-10-1988 in the above-mentioned case which was within time and the certified copy was not received. The Assessing Officer filed the second appeal on 13-11-1990 which was sent from Shillong and the same was received by the Office of the Senior Authorised Representative, Gauhati Bench, Gauhati on 21-11-1990 and, therefore, there was a delay for 766 day(s) only and the said delay was due to postal delivery. " The learned Departmental Representative submitted before us that as per the provisions of section 253 of the Act read with rule 9(1) and the Explanation thereto of the Income-tax (Appellate Tribunal) Rules, 1963, the time taken for obtaining the 'certified copy of the order of the first appellate authority' has to be excluded for the purpose of computing the limitation in filing an appeal before the Tribunal. He has further submitted that in the instant case the revenue has applied for a certified copy of the order of the first appellate authority on 1-10-1988 but the first appellate authority refused to issue a certified copy, as in his opinion, the certified copy is not required to be filed before the Tribunal. Immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 67A in 1930 under the Income-tax Act, 1922, the analogous provisions of the Limitation Act were held to apply to appeals under the said Act. Under the Income-tax Act, 1922, section 67A was introduced which reads as under : " In computing the period of limitation prescribed for an appeal under this Act or for an application under section 66, the day on which the order complained of was made and the time requisite for obtaining a copy of such order shall be excluded. " Section 33(3) of the Income-tax Act, 1922, empowers the parties to file an appeal to the Appellate Tribunal. Rule 10(1) of the Appellate Tribunal Rules, 1946, prescribes that every memorandum of appeal shall accompany at least one copy which shall be certified copy of the order appealed against. In the case of Rasipuram Union Motor Service Ltd. v. CIT [1956] 30 ITR 687, the Hon'ble Madras High Court had an occasion to consider the question of limitation in presenting the appeal before the Tribunal. In an exhaustive judgment, their Lordships have held that under section 67A of the Income-tax Act, 1922, read with section 76 of the Evidence Act, the time taken for obtaining a certified copy should be excluded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only condition that is to be fulfilled is that the Tribunal must be satisfied about the existence of sufficient cause for not presenting the appeal within the period of limitation. In our view, therefore, if the materials on record show that there was sufficient cause for the delay in filing the memorandum of appeal and if the Tribunal is satisfied about the same, the Tribunal can condone the delay. " Now, let us consider the decision of the Hon'ble Gauhati High Court reported in Anil Chandra Das's case. In the aforesaid case, the impugned judgment was delivered on 15-9-1988 and the certified copy was received by the appellant on 3-12-1988. It was stated in the judgment that the last date for filing the appeal was 9-2-1989 but the appeal was filed on 27-6-1989, resulting in a delay of 129 days, presumably reckoning from 9-2-1989. The question as to whether time taken for obtaining a certified copy has to be excluded or not, was not the subject-matter of dispute before his Lordship. In fact, the delay of 129 days was relatable to a period after the receipt of certified copy of the impugned judgment. While contesting the matter the learned counsel for the respondent has expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal is due to sufficient cause. The provisions of sections 33(3), section 67A of the Income-tax Act, 1922 are analogus to the provisions of sections 253(3) and 268 of the Income-tax Act, 1961. While interpreting the provisions of section 67A of the Income-tax Act, 1922, the Hon'ble Allahabad High Court held that the period spent for obtaining the copy of the impugned order shall be excluded in computing the limitation and such exclusion is not subject to any condition that it should be obligatory to file a copy of the impugned order with the memorandum of appeal. As this section has been transformed into section 268 of the Income-tax Act, 1961, we are of the opinion that the time taken for obtaining the certified copy of the impugned order shall be excluded while computing the period of limitation under section 253(3) of the Income-tax Act, 1961. Rule 9 of the Income-tax (Appellate Tribunal) Rules, 1963, was drafted in exercise of the power conferred under section 255(5) of the Income-tax Act, 1961. The rules cannot be equated to the statutory enactment and rules cannot override the provisions of the Income-tax Act. Even after the insertion of Explanation to rule 9(1), under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the Court with the object of furthering substantial justice [Emphasis supplied]. In the facts and circumstances of the case, we are of the opinion that the delay in filing of appeal was due to bona fide belief as mentioned hereinabove and soon after realising that the first appellate authority has refused to supply a certified copy, the appeal papers were promptly filed in the registry of the Tribunal and so it cannot be attributable to negligence on the part of the appellant. We, therefore, hold that the delay is due to sufficient cause. The teamed Authorised Representative appearing for the assessee has strongly relied upon the decision of the jurisdictional High Court. Upon a careful reading of the aforesaid judgment, we fail to understand as to how it helps the assessee in the present case. In fact, far from supporting the stand of the assessee, it supports the case of the Revenue, inasmuch as the Hon'ble Court held that in deciding the issue as to what constitutes sufficient cause, the matter has to be looked into with the object of furthering substantial justice. 7. It is, of course, the contention of the learned Authorised Representative appearing for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the recent past, while appearing before a Commission of Enquiry, that he was not aware of the entire provisions contained in the Act. This was the position obtaining in respect of the tax specialists. The assessee, however, could not be treated as a specialist. Even I, I must state, was not aware of the provision in question till this matter came before the Bench. The Courts have been now holding that ignorance of a particular law can be a reasonable excuse and it must be so held when it was a matter of tax law and its provisions were highly complicated. " From the aforesaid decisions it can be gathered that ignorance of law particularly under the Income-tax Act which is highly complicated enactment should not be viewed seriously and hence the delay in the instant case which was caused due to improper appreciation of the legal provisions, can be held as a sufficient reason for the delay in filing the appeals. The delay between 13-11-1990 to 26-11-1990 can be attributable to the postal delay. Thus, on an overall consideration of the matter, we are satisfied that the delay in filing the appeal, if any, deserves to be condoned. We, therefore, direct the registry to fix the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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