V K SREENIVASAN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) These income tax appeals are filed against the orders of the Income Tax Appellate Tribunal declining to entertain the appeals filed on account of inordinate delay in filing the same. Admittedly, two of the appeals were filed with a delay of 1830 days and the third appeal was filed with a delay of 735 days. The appellants' case is that the Tribunal, without giving a hearing on the delay condonation petitions, proceeded to consider the delay condonation petitions on merit and decided the same against the appellants. Consequently, the Income Tax Appeals got dismissed on account of the delay in filing the same. It is against the orders declining to condone the delay, the appellant has filed these appeals. At the admission stage, the standing counsel for Revenue took notice and we have heard him also. Before proceeding to consider the appellant's challenge on merits against the orders issued by the Tribunal, we have to first examine whether the appeals are maintainable before the High Court under Section 260A of the Income Tax Act against the orders of the Tribunal declining to condone delay. Since this issue occasionally arises in this Court, we feel the matter requires detailed consideration and decision for guidance to the Registry and to the Advocates. Section 260A(1) which provides for filing of appeal to the High Court is as follows:

(2.) What is clear from the above is that the order of the Income Tax Appellate Tribunal that can be appealed against before the High Court, is an order passed in the appeal. Prima facie, the order passed on a delay condonation petition is not an order in appeal because unless the delay is condoned, the appeal itself does not get admitted and therefore, the Tribunal has no opportunity to pass orders on the appeal, without admitting it. Of course, as a matter of practice, if the delay condonation petitions are dismissed, the Tribunal used to pass orders in the appeals as dismissed which is nothing, but a consequence of orders passed in the delay condonation petitions declining to condone the delay.

(3.) Section 253 of the Act, which provides for filing of appeal before the Income Tax Appellate Tribunal, states in Sub clause -(3) of the said section the period within which the appeal has to be filed both by the department as well as by the assessee. What is stated in sub clause-5 of Section 253 which clothes the Tribunal with power to condone the delay is as follows: