BHARATKUMAR SAKHSARIA Vs. DEPUTY COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THE above Appeal is filed challenging the order of the Income Tax Appellate Tribunal dated 31-10-2001, by which order the Appeal filed by the Appellant was held to be not maintainable under Section 249(4) of the Income Tax Act, 1961 (for short the said Act). The Appeal raises the following substantial question of law:

(2.) THE facts giving rise to the filing of the above Appeal can be stated thus:

(3.) WE have heard Shri J.D.Mistry, Senior Counsel for the Appellant and Mr. Suresh Kumar the Learned Counsel for the Respondent. The principal contention of the Learned Counsel for the Appellant was that since the Appellant had paid the tax payable on 31-3-2000, it is the said date which has to be taken as a date of filing of the Appeal and if the said date is taken into consideration, then there is a delay of about 4 days in filing the Appeal. The Learned Counsel submitted that the Tribunal has proceeded on erroneous premise that no power is vested with the Tribunal under Section 249 to condone the delay in filing the Appeal. The Learned Counsel drew our attention to sub Section (3) of Section 249 and contended that the First Appellate Authority has the power to condone the delay if sufficient reasons are made out for the same. The Learned counsel further submitted that since the Appellant had deposited the balance of the tax payable on 31-3-2000, the Appeal can be said to be filed on the said date though it has been filed earlier on 24-3-2000. The Learned Counsel in support of the said submission relied upon the Judgment of the Apex Court reported in 1961 vol 10 L I I page 163 in the matter of Commissioner of Income Tax Bombay Vs. Filmistan Ltd. The Learned Counsel lastly submitted that the Tribunal has unnecessarily mixed up two issues i.e. the issue regarding the condonation of delay in filing the Appeal and the issue as regards the condonation of delay in making payment of the tax and thereby fell into an error in rejecting the application of the Appellant. Per Contra the Learned Counsel for the Respondents supported the impugned orders, but fairly conceded that the First Appellate Authority is rested with the power of condonation of delay under Section 249(3) of the said Act.