JUDGMENT
1. The Income-tax Appellate Tribunal, Allahabad, has, under Section 256(1) of the Income-tax Act, 1961, referred the following question stated to be of law and to arise nut of its order dated April 25, 1981, passed in ITA No. 1696 (All) of 1980 for the opinion of the court.
"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in dismissing the assessee's appeal as time-barred ?"
2. We have heard Sri A.N. Mahajan, learned standing counsel for the Commissioner. No one has appeared on behalf of the assessee at whose instance this reference has been made.
3. The facts are that the assessee sent a memorandum of appeal to the Tribunal for the assessment year 1977-78. The same was despatched by registered post on April 5, 1980, vide postal registration receipt No. 1071 from the City Post Office, Mirzapur. When the assessee did not receive any acknowledgement from the Tribunal's Assistant Registrar, it sent a letter of enquiry dated August 1, 1980, to the Assistant Registrar who by a letter dated August 12, 1980, replied that no such appeal had been received in his office during the month of April, 1980. The assessee then wrote a letter dated August 22, 1980, to the Superintendent of Post Offices, Mirzapur, enquiring as to when the aforesaid letter despatched on April 5, 1980, was delivered. No reply seems to have been received and consequently the assessee filed a fresh appeal on September 4, 1980, and stating the aforesaid facts in his application for condonation of delay and the affidavit, requested for condonation of the delay in the filing of the appeal.
4. The Tribunal held that up to August 18, 1980, when the Assistant Registrar's aforesaid letter reached the assessee, there was reasonable cause for delay but according to it the assessee should have immediately filed the appeal afresh and, therefore, there was no cause for delay from August 9, 1980, to September 30, 1980. The Tribunal, therefore, dismissed the appeal as barred by time.
5. Whether the delay was because of reasonable cause is basically a question of fact but in this case the Tribunal's inference from the established facts is perverse and that is why, probably, this court held that a question of law did arise and directed the Tribunal to state a case.
6. As is evident, the Assistant Registrar's letter was not in pursuance of a genuine exercise to trace the memorandum of appeal. It merely stated that no such appeal was received in the month of April, 1980, and did not state that even during the period subsequent thereto and up to the time of reply no such appeal was received. The assessee as a rational person approached the Superintendent of Post Offices, Mirzapur, enquiring about the fate of the appeal and when no reply was received within a reasonable time and as a rational person he preferred to file a fresh appeal. In our view, therefore, the Tribunal was not right in holding that there was no reasonable cause for delay in the filing of the appeal and the Tribunal should have condoned the delay and entertained the appeal. We, therefore, answer the aforesaid question in the negative holding that the Appellate Tribunal was not justified in dismissing the appeal as barred by time.
7. An authenticated copy of this judgment be transmitted to the Tribunal in accordance with law.