VARKEY OUSEPH Vs. AGRL ITAT

JUDGEMENT

(1.) The petitioner was assessed under the Agricultural Income Tax Act, 1950 for the years 1964-65 and 1965-66. He filed appeals from the said assessments before the Appellate Assistant Commissioner concerned, who by a common order dated 11-2-1969 dismissed them. A copy of the order was served on the petitioner on 9-9-1969. On 22-9-1969, he applied for a certified copy of the order, which was furnished to him on 8-11-1969. On the basis of this copy, he filed a common appeal before the first respondent, the Agricultural Income Tax Appellate Tribunal, Trivandrum on 18-11-1969. By a notice Ex. P1 dated 26-11-1969, the Secretary of the Tribunal informed the petitioner that the appeal filed by him would be treated as relating to the year 1964-65, and that he had to send one more set of appeal memo and the appellate order for the appeal for the year 1965-66. The petitioner was given five days from the date of receipt of Ex. P1 to cure the defects. It was also pointed out by Ex. P1 that there was a delay of ten days in filing the appeal. The petitioner immediately complied with the notice, and the requisite papers were filed on 6-12-69. The petitioner also filed two applications for condoning the alleged delay in filing the appeals. The Tribunal by its order, Ex. P2, dated 8-7-1970, dismissed the appeals as time barred, stating that the grounds stated by the petitioner for condoning the delay were vague. The petitioner then filed two applications under S.36 of the Act stating that the period of limitation for filing the appeals had to be reckoned with reference to the certified copy of the order of the Appellate Assistant Commissioner obtained by the petitioner, and that, if the time taken for obtaining that copy was excluded, the appeals were not time barred, and praying to rectify the Tribunal's Order Ex. P2, since the dismissal of the appeals as time barred was due to an error apparent on the face of the record. The Tribunal dismissed these applications, by a very detailed order, Ex. P4 dated 5-2-1971, holding that the certified copy obtained by the petitioner cannot be taken into account in reckoning the period of limitation, since a copy of the appellate order had been communicated to him by the Appellate Assistant Commissioner, and that S.36 of the Act under which the petitioner applied for rectification of its previous order had no application to the case. The petitioner has then filed this writ petition to quash Exs. P2 and P4, and to issue a writ of mandamus directing the Tribunal to hear and dispose of the appeals on the merit.

(2.) Two points were raised by counsel for the petitioner. One is that the Tribunal acted arbitrarily in not condoning the alleged delay in filing the appeals and in rejecting them as time barred. The other point is that there was no delay at all in filing the appeals. This point is not free from difficulty; but the first point is very simple. The time within which an appeal has to be filed before the Appellate Tribunal is fixed in S.32(1) of the Act; it is sixty days of the date on which the Assistant Commissioner's order is communicated to the assessee. Sub-s.(3) of S.32 reads:

(3.) In the instant case, there was genuine controversy whether the copy of the order communicated by the Assistant Commissioner to the petitioner as required by S.31(7) of the Act would serve the purpose of a certified copy to accompany the appeal petition, or he should apply for and obtain a certified copy to be attached to the appeal petition. It is obvious that the petitioner bona fide thought that the appeal petition should be accompanied by a certified copy of the order obtained from the Assistant Commissioner on application and payment of the requisite fee in the ordinary course. It is seen that he applied for such a copy within 13 days after the order of the Appellate Commissioner was communicated to him; and he filed the appeal accompanied by this certified copy within 10 days of receiving the same, though he had on the whole 60 days to file the appeal, after excluding the time taken for getting the certified copy. All these things were done through an advocate, which means that the petitioner acted on legal advice, though as it happened ultimately that the advice was wrong in the opinion of the Appellate Tribunal. There has not been even a suggestion at any stage that the petitioner had anything to gain, or he acted with any secondary motive in not filing the appeal on the basis of the copy of the order communicated to him by the Assistant Commissioner. After all, the delay in filing the appeal on reckoning the period of limitation from the date of communication of the order was only 10 days. There is no case that the petitioner did not cure the defects of not filing the requisite number of copies of the appeal petition and the order appealed from within the time allowed to cure the said defects as per Ex. P1. The petitioner also pleaded that due to the explosive and dangerous situation faced by the agriculturists in that area on account of labour agitation, he could not meet his advocate and arrange for the filing of the appeals more expeditiously. It is unfortunate that the Tribunal considered that this ground was vague; and it rejected the applications for condoning the alleged delay on this sole ground. The question whether there is sufficient cause to admit an appeal filed out of time is purely a matter for determination in exercise of the discretion of the appellate authority, but the discretion has to be exercised judiciously. If there is no exercise of the discretion at all, or it is exercised arbitrarily or whimsically, it would be a case of failure to exercise jurisdiction or an illegal exercise of it. That is precisely the case here. I am unable to understand what the Tribunal meant by saying that the ground alleged by the petitioner for condoning the delay was vague. It is very definite, and if it is true, there can be no doubt that it would be a sufficient cause. The Tribunal has no case that the ground alleged was not true. Apart from any of these considerations, it is obvious from the facts and circumstances of the case, which I have referred to above, that this was a case where there was genuine controversy whether the copy of the order communicated by the Assistant Commissioner to an assessee is a certified copy of that order, or the assessee should apply for and obtain a certified copy for being produced along with his appeal petition, and the assessee bona fide considered that it was necessary. The Appellate Tribunal failed to exercise its discretion in totally ignoring this obvious aspect of the matter and not condoning the delay, which in its opinion had occurred, in filing the appeal. The impugned orders are liable to be quashed on this sole ground.