I.T.A. No.4245/LB of 2002 and M.A. (Cond.) No.437/LB of 2003, decided on 13th September, 2003. Versus I.T.A. No.4245/LB of 2002 and M.A. (Cond.) No.437/LB of 2003, decided on 13th September, 2003.
ORDER
1. RASHEED AHMAD SHEIKH (JUDICIAL MEMBER).‑‑‑ The Revenue besides assailing the order passed by the CIT(A) Zone‑V, Lahore, dated 23‑5‑2002 in respect of the assessment year 1998‑99 has also filed a Misc. Application for condonation of delay of one day in filing appeal against the said order of the First Appellate Authority in the office of the ITAT, Lahore.
2. This case for the first time came up for hearing on 6‑9‑2003 and was adjourned on the specific request of the learned DR whereby he showed his intention to call for legal Advisor. Accordingly, the case was adjourned for 13‑9‑2003. Today none has prosecuted on behalf of the Revenue to plead its case. It is, therefore, decided to proceed ex parte, in absence of the learned DR, on merits by resort to rule 20(2) of the ITAT Rules. On the other hand, Ch. Muhammad Tahir, Advocate, was present at the instance of the assessee who has been heard at sonic a great length.
3. As per the facts available on record date of communication o the order appealed against has been mentioned, in the memos of appeal, by the Revenue as 9‑7‑2002 while the appeal in the office of the ITAT, Lahore has been received on 7‑9‑2002. If the date of tiling of this appeal is to be reckoned from the date of communication of the impugned, order mentioned in the memo of appeal; the appeal seems to have been filed within the stipulated period of time as has been enunciated, in section 134(3) of the Income Tax Ordinance, 1979. But it is interesting to note that had it been so, what was the occasion in seeking condonation of delay in filing the present appeal? Even the contents of the Misc. Application are self‑contradictory. For example, last date of filing o appeal papers has been mentioned as 6‑9‑2003 instead of 6‑9‑2002: Like‑wise date of filing of appeal has been mentioned as‑7‑9‑2003 rather 7‑9‑2002. For the purposes of ready reference, the contents of the said application are being reproduced hereunder:‑‑
4. "(1) That an appeal had been filed in this Honourable Court on 7‑9‑2002 (mistakenly mentioned as 2003 in the miscellaneous application) against the orders of the learned CIT(A), Zone‑V, Lahore.
(2) That the last date of filing of this appeal was 6‑9‑2003.
(3) That the appeal had actually been filed‑on 7‑9‑2003, thus there is a delay of one day in filing of appeal.
(4) That the appeal papers were prepared by 6-9‑2003 but, same could not be delivered in the office of this Honourable Court due to some mishap with the dispatch rider.
5. "(5) That the delay of one day is, inadvertent and it was occurred on account of factors beyond the control of the appellant.
6. It is, therefore, prayed that condonation for delay of only one day, in submission, of appeal, may please be allowed and the appeal may please be heard on merits."
7. As is apparent from above, it leas categorically been admitted that last date of fling of this appeal was 6‑9‑2002. If it is worked back, date of receipt of the impugned order falls on 8‑7‑20112 and not on 9‑7‑2002.
8. This factum also gets strength from a letter furnished by Ch. Muhammad Tahir, Advocate, appearing on behalf of the assessee, which has been issued by the CIT(Appeals) Zone-V, Lahore bearing No.03/V, dated 10‑7‑2003 whereby it has clearly been specified that copy of the impugned order was communicated to the Commissioner of Income Tax Zone‑B, Lahore, Lahore on 8‑7‑2002. All the facts narrated supra vividly lead to an inescapable conclusion that date of communication of the order appealed against is 8‑7‑2002 and not 9‑7‑2002 as has been mentioned in the memos of appeals. Thus for the purposes of disposal of this appeal, date of communication of the impugned order has been adopted as 8‑7‑2002.
9. Before us the learned A.R. has vehemently contended that since the appeal is barred by time by one day and no sufficient cause has been adduced by the department which has prevented it not to file appeal within due limit of time, thus, the departmental appeal merits dismissal thereof. The learned counsel for the assessee has also pleaded that delay in filing the appeal cannot be condoned unless delay of each and every day has not been explained with sufficient cause which has prevented not to file appeal within the due period of time and reliance in this regard has been placed upon a few case law cited as 2001 MLD 1489, 2001 SCMR 1346, 2000 MLD 1335 Lahore High Court, 2000 SCMR 1197, 1981 SCMR 37 and 2001 SCMR 1630.
10. After appraising the facts available on record and on perusal of the case‑law cited at the bar we cannot help but reach the conclusion that the appeal filed by the Revenue in the office of the Tribunal on 7‑9‑2002 was hit by limitation by one day. There is no cavil to this fact that copy of the impugned order has been received by the Commissioner of Income Tax Zone-B, Lahore on 8‑7‑2002. Thus this is highly deplorable at the instance of the Revenue to misstate the facts at this level. The high‑tips of the Income Tax hierarchy should take serious note of such misstatement of facts because such acts diminish credibility of the department. As is evident from the facts, stated supra, the appeal has been filed by the Department on 61st day from the date o communication of the order appealed against i.e. 8‑7‑2002. According to section 134(3) every appeal shall be filed within 60 days of the date on which the impugned order is communicated to the Commissioner or to the assessee as the case may be.
11. Whereas in the present appeal has been instituted late by one day. The condonation of delay has been sought on the ground that the appeal papers had actually been prepared on 6‑9‑2002 but those could not be delivered in the office of the ITAT on the said date due to mishap with the Dispatch Rider and as such the delay was inadvertent on account of factors beyond the control of the appellant. This reason cannot be held to be a sufficient cause, which has prevented the appellant to present the appeal within the stipulated time. The learned counsel for the assessee has also pointed out that the application for condonation of delay, which, ought to have been filed alongwith the appeal, was filed on 3‑7‑2003 with a delay of 299 days as worked out in the papers submitted before us. Anyhow, it is cardinal principle that it is the duty of the party in appeal to explain the delay of each and every day from the date o knowledge of the impugned order. A sufficient cause can properly to be said a cause which is beyond the control of the party invoking aid of section 134(3) of the Income Tax Ordinance, 1979 read with section 5 of Limitation Act, 1908. In tact, on expiry of period of limitation, valuable right as accrued to other side, which cannot be taken away except on making out sufficient cause explaining delay of each day. In no way the reasons advanced by the department for condonation of delay is al sufficient cause for extension of time. In arriving at this conclusion we are fortified by the Judgment cited by the learned counsel for the assessee before us. Hence, we hold that the application for condonation of delay is not maintainable in view of foregoing facts.
12. Since we have not condoned delay in filing the instant appeal, therefore, that stands dismissed being hit by laches.
13. In the result, the appeal as well as the Misc. Application filed at the instance of the Revenue are dismissed on this short ground alone.
14. C.M.A/67/Tax (Trib.) Appeal and Miscellaneous application dismissed.