1975 (12) TMI 53

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....registered post from Jeypore to the office of the Appellate Tribunal at Cuttack on 13th of January, 1971. The memorandum of appeal accompanied by the money order receipt was received in the office of the Tribunal on the 15th of January, 1971, but the money order remittance was received on January 27, 1971. The Tribunal dismissed the appeal as being barred by limitation. The manner of filing of second appeal has been provided under section 253 of the Act ; sub-sections (3) and (6) thereof are relevant and those provisions are as follows : " (3) Every appeal under sub-section (1) or sub-section (2) 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 Commissioner, as the case may be." " (6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, except in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in sub-section (4), be accompanied by a fee of rupees one hundred. " Rule 6 of the Income-tax (Appellate Tribunal) Rules, 1963, made under section 255(5) of the Act provi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... is accompanied by prescribed fee or when prescribed fee has been paid. In this case while it is true that the memorandum of appeal unaccompanied by the prescribed fee was received within the time, the fee itself was received much later and there being no mode of payment of appeal fee prescribed, the post office could not be construed as agent of the Tribunal for receiving the fee and transmitting it to the Tribunal. It follows, therefore, that when the appellant sent the money order by post office, he constituted the post office as his agent for transmitting the prescribed fee to the Tribunal and the payment could be regarded as having been made only when actually received by the Tribunal. In the circumstances, the explanation offered clearly shows that the delay in the receipt of the prescribed, fee by the Tribunal was on account of delay by postal authorities in transmitting the fee remitted by the appellant. The Orissa High Court in Brajabandhu Nanda v. Commissioner of Income-tax [1962] 44 ITR 668 (Orissa) [FB] has held that the postal delay cannot be a sufficient cause with regard to condonation of the delay in filing the appeal. In the circumstances, we dismiss the appeal as ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....case [1960] 40 ITR 93 (Orissa) [FB] the Full Bench of this court took the view, reversing an earlier decision of this court in the case of Sri Popsing Rice Mill v. Commissioner of Income-tax [1949] 17 ITR 420 (Orissa) that the postal department was an agent of the sender and not of the Appellate Tribunal--the addressee. Relying on the said principle and in the facts of the case, this court in Brajabandhu Nanda's case [1962] 44 ITR 668,(Orissa) [FB] came to the conclusion that the postal delay could not be accepted as constituting sufficient cause for non-presentation of the appeal within the prescribed period. We are afraid, the Tribunal has failed to appreciate the import of the decision and has surrendered the discretion vested in it by statute under confusion. The proposition laid down by the Tribunal would mean that a statutory mode of presentation of appeals available to assessees would be rendered ineffective. Consider a case where on the second day of receipt of the decision of the Appellate Assistant Commissioner, the assessee transmits the memorandum of appeal to the Tribunal. On account of unforeseen supervening circumstances, the papers are not received within the prescr....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ase is of an unusual type and cannot be taken to be an event of the ordinary run. If the Tribunal had looked at the matter with an open mind and being conscious of the fact that it has jurisdiction to condone the delay, we do not think it would have come to the conclusion that the appeal deserved to be dismissed as being barred by limitation. There is yet another aspect of the matter in favour of the assessee. As already stated, the assessee enclosed the money order receipt with the memodum of appeal and that receipt had been received in the office of the Appellate Tribunal on the 15th January, 1971, along with the memorandum of appeal. The Tribunal has found that remittance of the fee prescribed under section 253(6) of the Act by money order is not prohibited under the Rules. Nothing has been shown to us to take a contrary view. In these circumstances, reliance has rightly been placed by learned counsel for the assessee on a Bench decision of the Madhya Pradesh High Court in the case of J. K. Agents Pvt. Ltd. v. Commissioner of Income-tax [1972] 86 ITR 793, 796 (MP). The learned Chief Justice, after reviewing various decisions of different courts and after considering the note ....