9911796707
TMI Blog1972 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... osited? (2) (a) Whether, upon the facts and in the circumstances of the case, the record which the Additional Judge (Revisions) could take into consideration under section 10(3) of the Act includes the notes of arguments recorded by the Assistant Commissioner (Judicial) during the hearing of the appeal? (b) If so, whether the oral request, recorded in the note made therein, for condonation of delay can be taken into consideration as an application under section 5 of the Limitation Act for condoning the delay in filing the appeal? (3) Whether, upon the facts and in the circumstances of the case, the finding of the Additional judge (Revisions) is right in law that no application for condoning the delay in filing the appeal was made before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in revision such an application could not be entertained for the first time. The revision was dismissed. Thereafter, the assessee filed an application for rectification of the revisional order on the allegation that at the hearing of the appeal the counsel appearing for the assessee had made an oral request for the condonation of delay in filing the appeal and the finding of the revisional authority that no such prayer was made at the appellate stage was erroneous on the face of the record. The Judge (Revisions) dismissed this application on the ground that primarily a written application for the condonation of delay was in law required and so an oral request was not sufficient. Thereafter, the assessee moved an application under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any, in the body of the assessment order could constitute as a ground for an appeal, but in our opinion, it would have no effect whatsoever in the computation of the period of limitation for the appeal. We would answer the first question in the negative. Upon question No. (2)(a) the position is that before the Judge (Revisions) the assessee made an application stating that he had made an oral prayer for condonation of delay before the Assistant Commissioner (Judicial). To verify this fact, the Judge (Revisions) summoned the register of arguments maintained by the Assistant Commissioner (Judicial). From the order passed by the Judge (Revisions), it is clear that he found a note in the margin of the said register to the effect that an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as an application under section 5 of the Limitation Act. Learned counsel for the assessee invited our attention to Mt. Kulsoomun Nissa and Another v. Noor Mohammad alias Sultan Haidar and AnotherA.I.R. 1936 All. 666. for the proposition that an oral request can be entertained for condoning the delay. In our opinion, this case is no authority for the proposition. In that case the name of one of the defendants was omitted from the decree. Consequently, the memorandum of appeal did not include him as a party. Subsequently, the decree of the trial court was amended and the name of that defendant was added to the decree. Then, within 30 days the memorandum of appeal was amended by the introduction of the name of that defendant. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This case would show that if the material upon which the party relied for the relief of the condonation of delay is on the record then the court ought to apply its mind to it and refusal to do so simply on the ground that no written application in that behalf has been filed would not advance the ends of justice. This authority will not be applicable to a case where on the record there is no material upon which a judicial tribunal can grant relief of condonation of delay. If a party seeking the condonation of delay does not bring on the record all the necessary material, but contents itself by making an oral request for the condonation of delay then this authority does not help and we would hold that in this situation a mere oral request was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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