Find a Lawyer

I.T. As. Nos. 281(IB) and 334(IB) of 1985-86, decided on 27th January, 1987.

---Ss. 134(3)(4), 59(1) & 65--Self- Assessment Scheme--Assessment made under S. 65--Appeal--Limitation--Condonation of delay--Appeal filed before Tribunal after one day's delay--Applicant, seeking discretionary relief for condonation of delay, must satisfactorily explain that such delay was not caused because for any negligence or that he was prevented by sufficient cause from presenting appeal within period of limitation--No sufficient cause within meaning of S. 134(4) put up for condonation of delay for failure to file appeal within period of limitation as specified in subsection (3) of S. 134--Application for condonation of delay rejected.

Mst. Rukhsana Ahmad v. Tariq Ataullah P L D 1977 Kar. 564 and Accountant-General Punjab v. Ch. Qadir Bukhsh P L D 1983 Lah. 246 ref.

Maqbool Hussain Shah, D.R. for Applicant.

Ishfaq Ahmad Razi for Respondent.

Date of hearing: 27th January, 1987.

Briefly, the facts leading to the present miscellaneous application and the connected appeal are that the assessee-respondent deals in manufacture and sale of indigenous crockery. Initially, the assessment r for the charge year 1983-84 was made under the Self-Assessment Scheme as envisaged in section 59 (1) of the Income Tax Ordinance, 1979, by virtue of the assessment order, dated the 30th June, 1983, at the declared income of Rs.24,000. Subsequently, on receipt of certain information from the Income-tax Officer, Survey and Collection Circle, Gujranwala, it transpired that the respondent had paid Sui gas consumption bills amounting to Rs. 99, 245 during the period relevant to the assessment year 1983-84. The Assessing Officer considering that the assessed income of Rs.24, 000 was much lower as compared to the consumption of Sui gas, he initiated proceedings under section 65 of the Income Tax Ordinance, 1979, and consequently computed the income at Rs.54,000 after allowing expenses of Rs.10,000.

2. On appeal, the learned Appellate Assistant Commissioner by his order, dated the 9th December, 1985, confirmed the action taken under section 65 ibid but considering the expenses allowed by the Assessing officer at Rs.10,000 on the lower side, raised the same to Rs.24,000. This order is claimed to have been received by the Commissioner of Income-tax, Gujranwala Zone, Gujranwala, on the 9th January, 1986. But the Department which was aggrieved of the aforesaid finding, however, filed the present appeal before the Appellate Tribunal on the 11th March, 1986, i.e., after one day delay from the period of limitation as specified in subsection (3) of section 134 of the aforesaid Ordinance. This fact was duly brought out the notice of the concerned Income-tax Officer by the Assistant Registrar of the Tribunal. The present miscellaneous application registered as Miscellaneous Application No. 28 (IB)/85-86, has, therefore, been filed requesting for condonation of delay in presenting the appeal registered as Income-tax Appeal No. 334(IB)/85-86.

3. Syed Maqbool Hussain Shah, the learned Departmental Representative supporting the application and appeal contended that as stated by the Income-tax Officer the appeal could not be filed on the 10th March, 1986, 'as the messenger could not locate the Tribunal's Office' on that date. It was urged that since only one day delay was involved, the appeal may be admitted condoning the delay. No doubt that there is only one day delay in filing of the appeal, but this delay has invested the respondent with a valuable right. In Mst. Rukhsana Ahmad v. Tariq Ataullah P L D 1977 Kar. 564, relying upon earlier decisions, the Karachi High Court had declined to condone one day delay in filing the appeal, because the appellant could not satisfactorily explain the delay notwithstanding that the copy oaf the impugned order was delivered to her only two days earlier. Likewise, in Accountant -General, Punjab v. Ch. Qadir Bukhsh P L D 1983 Lah. 246, the Lahore High Court had in similar circumstances declined to condone eight days' delay in filing the inter-Court appeal. It will thus be beneficial to reproduce below the relevant extract from the said decisions.

"There is no doubt whatsoever that the appeal is barred by time, Not only it was filed after 8 days of the limitation without any application for condonation of delay in the first instance but the explanation advanced is that it was "caused" due to the fact that the matter was examined by different departments. The Government Departments should be more vigilant and efficient being staffed by educated paid officers than private citizens. The latter are not shown indulgence for such consultation. Why Government Departments No premium can be put on inefficiency. All have to be treated alike by law."

4. It is well-settled principle that before taking advantage for seeking discretionary relief for condonation of delay, the applicant must satisfactorily explain that such delay was not caused because of any negligence or that he .was prevented by sufficient cause from presenting the appeal within the period of limitation. In the present case, no satisfactory explanation for the delay has been given. As referred to above it has only been stated that appeal was delayed because the messenger could not locate the Tribunal's Office on the 10th March, 1986, i.e., the last day of limitation. The application does not contain the name of messenger who was deputed for presentation of appeal at the office of the Appellate Tribunal. Not it has been stated as to when the appeal papers were actually delivered to the said messenger and in what circumstances he could not locate the office of the Tribunal. No affidavit on behalf of the said messenger has been filed nor it has been pointed out that any disciplinary action was taken against the said messenger if he was an official of the Department. There are large number of offices of the Income-tax Department situated all over Islamabad including the office of the Central Board of Revenue. If the location of the office of the Appellate Tribunal was not known, he could ascertain the location ' of this office from making enquiries from any such office as he had probably done on the following date.

5. It is also surprising that exactly the same plea was taken by the Income-tax Officer, Circle-22, Gujrat, in Income-tax Appeals Nos. 338 to 342 (IB) of 1985-86 relating to Messrs Khalid Pottery Works Gujrat and Income-tax Appeal No. 332 (IB) of 1985-86 Of Messrs Tariq Brother, Gujrat. In those cases, the appeals were filed after the period of limitation and, the applications for condonation of delay were moved exactly in the same words and raising the same plea. Does it mean that both the Income-tax Officers had deputed the same messenger for delivery of these appeals in the office of the Tribunal or both the messengers were unable to locate the office of the Appellate Tribunal on the 10th March, 1986. This identity of plea taken by the two officers clearly cast a doubt on the genuineness of the claim.

6. It is clear from the endorsement of the covering Letter No. 644, dated the 8th March, 1986 filed alongwith the appeal that Commissioner of Income-tax had directed the Income-tax Officer for filing the appeal by his Letter No.(102)/14 (Jhm)/ 85-86/6413/J, dated the 2nd March, 1986. Therefore, obviously if the messenger deputed by the Income-tax Officer was not aware about the location of the Appellate Tribunal, he could have been sent to Islamabad a day earlier instead of assigning him the job on the last date of limitation. Hence, it is abundantly clear that no sufficient cause within the meaning of section 134(4) of the Income-tax Ordinance, 1979, has been put up for condonation of delay for failure to file the appeal within the period of limitation as specified in subsection (3) thereof. Hence, the miscellaneous application for condonation of delay is rejected being misconceived. Likewise, the appeal is also dismissed being barred by time. Since the appeal is dismissed on a legal issue, finding on the grounds of appeal raised by the Department is not called for.

S.Q./355/T Application and appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.