ORIENT ROADWAYS VS COMMISSIONER OF INCOME-TAX, 2000 PTD-DELHI-HIGH-COURT-INDIA 999 (1998)

Income-tax---

----Reference---Question of law---Appeal to Appellate Tribunal---Appeal barred by time---Assessee-firm filing application for condonation of delay in filing appeal---Tribunal rejecting application on the ground that continued ailment of one of partners was not sufficient cause for delay as assessee-firm had legal assistance and other partners and employees---Finding of Tribunal was a finding of fact---No question of law arose for reference---Indian Income Tax Act, 1961, S. 256(2)---Indian Limitation Act. 1963, S. 5.

For the assessment year 1982-83, the assessee-firm being aggrieved by the order of assessment, dated March 14, 1985, preferred an appeal before the Commissioner of Income-tax (Appeals) which was dismissed as barred by time by order, dated October 9, 1985. The order was communicated to the assessee on 6th November, 1985. The assessee preferred an appeal to the Tribunal on February 2, 1993, which was barred by time by seven years and three months. The assessee filed an application under section 5 of the Limitation Act, 1963, and sought condonation of delay in filing the appeal. The Tribunal dismissed the application for condonation of delay as also the appeal on the grounds that the continued ailment of one of the partners was set up as a ground for condonation of delay in filing the appeal, that the assessee had legal assistance available to it, that there were other partners and employees of the firm who could have taken care of filing the appeal even in the absence of one of the partners and that the delay in filing the appeal was not bona fide and could not be condoned. The Tribunal dismissed the application of the assessee under section 256(1) of the Income Tax Act, 1961, for referring a question of law. On an application filed under section 256(2):

Held that whether or not there was sufficient cause within the meaning of section 5 of the Limitation Act, 1963, for condoning the delay in filing the appeal is basically a question of fact. The Tribunal is the final fact finding authority and a finding of fact recorded by the Tribunal cannot be said to give rise to a question of law worth being answered by the High Court. In the instant case, the findings of the Tribunal were findings of fact and no question of law arose for reference. .

Collector, Land Acquisition v. Mst. Katiji (1987) 167 ITR 471 (SC); Ramachandran (P.K.) v. State of Kerala (1997) 6 Scale 269; State of Haryana v. Chandra Mani AIR 1996 SC 1623 and (1996) 3 SCC 132 ref.

A. Raghubir with Ms. Lakshmi lyengar for the Assessee

R. D. Jolly with Ajay Jha for -the Commissioner.

JUDGMENT

R. C. LAHOTI, J.---By this petition under section 256(2) of the Income Tax Act, 1961, the assessee-petitioner seeks a mandamus to the Tribunal for drawing up a statement of case and referring the following question of law for the opinion of the High Court:

"Whether, on the facts and in the circumstances of the case and in law on a correct interpretation of decision in Collector, Land Acquisition v. Mst. Katiji (1987) 167 ITR 471 (SC), the Tribunal was right in not condoning the delay and dismissing the appeal in limine?"

For the assessment year 1982-83, the assessee feeling aggrieved by the order of assessment, dated March 14, 1985, preferred an appeal before the Commissioner Income-tax (Appeals) which was dismissed as barred by time, by order, dated October 9, 1985. The order was communicated to the assessee on November 6, 1985. The assessee preferred an appeal to the Income-tax Appellate Tribunal on February 2, 1993. The appeal was barred by time by seven years and three months. The assessee moved an application under section 5 of the Limitation Act, 1963, seeking condonation of delay in filing the appeal. The application has been dismissed and consequently the appeal too. The Tribunal .has held that the assessee was a partnership firm. The continued ailment of one of the partners of the firm was set up as a ground for condonation of delay in filing the appeal. The assessee had legal assistance available to him. There were other partners and employees of the firm who could have taken care of filing the appeal even in the absence of one of the partners. Taking into consideration all these facts the Tribunal arrived at a finding that the delay in filing the appeal was not bona fide and hence was not liable to be condoned. Before the Tribunal, the assessee had placed reliance on the law laid down by the Supreme Court in Collector, Land Acquisition v. Mst. Katiji (1987) 167 ITR 471 (SC) which has been distinguished by the Tribunal and held not applicable to the facts of the case.

At the time of hearing before us, learned counsel for assessee petitioner referred to two more decisions of the Supreme Court, namely, State of Haryana v. Chandra Mani (1996) AIR 1996 SC 1623; (1996) 3 SCC 132 and Ramachandran (P. K.) v. State of Kerala (1997) 6 Scale 209.

Having heard learned counsel for the parties, we are satisfied that no referable question of law arises from the order of Tribunal and no fault can be found with the view taken by the Tribunal in rejecting the petitioner's application under section 256(1). Whether or not there was sufficient cause within the meaning of section 5 of the Limitation Act for condoning the delay in filing the appeal is basically a question of fact. The Tribunal has kept the law laid down by the Supreme Court in its view and then found that the benefit thereof was not available to the assessee-petitioner in the facts and circumstances of the case. It is well-settled that the Tribunal is final fact finding authority and a finding of fact recorded by the Tribunal cannot be said to give rise to a question of law worth being answered by the High Court.

The application under section 256(2) of the Act is, therefore, held liable to be dismissed and is dismissed accordingly.

M.B.A./3340/FCApplication dismissed.