TaxTMI 
TaxTMI 
1982 (7) TMI 116
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.... no appeal filed. On 3-10-1980 the assessee filed an appeal before the Commissioner (Appeals) with a request for condonation of the delay in filing the appeal and claiming to exclude the long-term capital gains originally included in the assessment. The request to condone the delay in filing the appeal was based, according to the assessee, on a news item in the Economic Times dated 19-3-1980 which reported a decision of the Bombay High Court decided on a writ petition in the case of Manubhai A. Sheth v. N.D. Nirgudkar, Second ITO [1981] 128 ITR 87 that capital gains arising on the sale of agricultural land used for agricultural purposes was not liable to tax. The assessee sought to explain before the Commissioner (Appeals) that mistakenly he had returned the income at the original stage, but after the decision of the Bombay High Court which came to his notice, he knew that the above income was not liable to tax. After the news item appeared in the Economic Times, he waited to collect the actual judgment laying down the above proposition and immediately after his legal advisers looked into the matter and without any further delay filed an appeal. The Commissioner (Appeals) found tha....
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....o for the argument sake, according to the learned counsel, the delay in filing the appeal was so long that it can never be condoned. The assessee, relying on a decision of the Bombay High Court in some other case, could not have taken the time in coming to know of such a judgment as time to be not accounted for limitation purposes for filing an appeal (sic). There are several decisions published from day-to-day and several judgments delivered by the High Courts and the Supreme Court and if all settled matters were to be disturbed with delivery of every such judgment, according to the learned counsel, there would be no settled law in the country at all. Everything will be unsettled and finality would be unknown. It is also pointed out that apart from generally giving an explanation for the delay in filing of an appeal, the assessee has to explain every day of the default. This he can do neither with reference to the period up to the time the decision was noted in the Economic Times nor the period thereafter up to the date of filing the appeal. A mere general statement of the assessee that until be saw the item in the newspaper he was not aggrieved and that immediately thereafter he ....
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....issioner (Appeals) did not give an opportunity to the ITO, since in any case the records must have been called for from him and be was asked to represent before the Commissioner (Appeals). Notice is always issued to the ITO by the Commissioner (Appeals). The fact that an appeal was filed on this point was known both to the department and the assessee. In this case, the decision of a subsequent binding authority indicated to the assessee that he has been overtaxed. This was a clear grievance against which he could appeal. 8. On the question of delay itself and condoning it, it is pointed out that the assessee became aggrieved only when he saw from the reported decision of the Bombay High Court that he has returned as income something which was not taxable. 18-10-1975 was the last date for filing the appeal. The decision of the Bombay High Court was referred to in the Economic Times on 19-8-1980. Immediately after knowing this, the assessee had contacted his chartered accountants and solicitors and even the papers were prepared for the counsel. On 1-10-1980 the counsels advised that the appeal be filed and within two days on 3-10-1980, after consultation with the chartered account....
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....e assessee felt aggrieved for the first time because of the decision of the Bombay High Court on a particular point. While article 141 of the Constitution lays down that only Supreme Court decision is the law of the land, it would be problematic whether with every decision or judgment of any of the High Courts in India, any assessee could feel that a fresh cause of action was arising and with another decision of the same or some other High Court the cause of action disappearing. What we want to emphasise is while the decision of the High Court settles the law for the particular state it is not always that all the High Courts decide the same matter in the same manner. Another High Court might give a different decision on the matter. A decision of a High Court on law cannot, therefore, even pursuing the logic of the assessee's argument, make him aggrieved. Basically, therefore, and apart from the question of the assessee having been assessed on a returned income, we cannot accept the position in fact or in law that the assessee is aggrieved in this particular case. Perhaps it might have been a different position if the assessee has acted on a decision of the Supreme Court so that at ....
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....ompany instituted a suit on the original side of the Bombay High Court to recover the sales tax paid on outside sales on the ground that it was illegally levied and that the illegality was discovered after the decision of the Supreme Court. It was also claimed that section 20 of the Sales Tax Act did not bar the institution of the suit. Their Lordships of the Supreme Court held that section 20 was an absolute bar against the institution of a suit and that the appellant could have either appealed or applied for revision and prayed for condonation of delay on the ground that the mistake which was responsible for the illegal recovery was when the Supreme Court pronounced its judgment and that such a plea would have been competent under section 22B of the Sales Tax Act. Section 22B gave power to the prescribed authority to extend the period of limitation if it is satisfied that the party applying for such extension had sufficient cause for not preferring the appeal or making the application within such period. Section 23A of the Sales Tax Act provided for rectification of the mistake. The facts of the case indicate that this was a clear case of a mistaken payment, the Supreme Court hav....
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....ter before the Appellate Tribunal...." This was held to be not an exercise of second judicial discretion. 18. Karamchand Premchand (P.) Ltd. v. CIT [1975] 101 ITR 46 (Guj.) also refers to a case where the petitioner could have applied for rectification of the orders of the assessment within the prescribed period of limitation. Here also action was taken pursuant to a Supreme Court's decision. 19. An analysis of the cases cited before us clearly indicates that the provision where rectification or an alleged grievance on account of a decision accepted was possible only where such rectification could be done within the period of time. A final legal pronouncement of the Supreme Court alone has been regarded as justifying interference by the appellate or revisionary authorities. The decisions are given on the peculiar facts of the cases and cannot be regarded as laying down a general position, helping the assessee's case. 20. Apart from the above, even if the High Court's decision could be regarded as giving rise to a grievance and a cause of action. It is doubtful whether the delay in filing an appeal could be condoned for that reason. Periods of limitation are provided not....