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Dr. Virendra Swarup Memorial Trust v. Commissioner Of Income-Tax, Kanpur And Another - WRIT TAX No. 116 of 2002 [2004] RD-AH 365 (26 July 2004)


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Court No.37

Civil Misc. Writ Petition No. 116 of  2002

Dr. Virendra Swarup Memorial Trust v. Commissioner of Income Tax, Kanpur and another.

Hon'ble R.K.Agrawal, J.

Hon'ble K.N.Ojha, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Dr. Virendra Swarup Memorial Trust, Kanpur seeks a writ, order or direction in the nature of certiorari quashing the order dated 31.12.1999 passed by the Tax Recovery Officer(A), Income Tax Department, Kanpur, respondent no.2,  filed as Annexure 7 to the writ petition in so far as it refuses to pay the interest on the amount refundable to the petitioner as also the order dated 31.1.2001 passed by the Commissioner of Income Tax, Kanpur, respondent no.1. It appears that vide order dated 31st January, 2001 the Commissioner of Income Tax. Kanpur refused to condone the delay of one day in filing the appeal under Rule 86 of the Second Schedule to the Income Tax Act, 1961.

We have heard Sri Rakesh Ranjan Agarwal and Sri Ashok Kumar, learned Standing Counsel appearing for the respondents and perused the impugned order dated 31.1.2001.

Learned counsel for the petitioner submitted that there was delay of only one day that occurred on account of fact that the person who was looking after the matter fell ill on account of high blood pressure and in fact he was going to file the appeal when on the way he fell down. He thus submitted that the Commissioner of Income Tax, Kanpur ought to have condoned the delay as the petitioner was not going  to gain in any way by delaying the matter.  It is not in dispute that the delay is of one day only.  The Commissioner of Income Tax, Kanpur Nagar should have taken a liberal view in the matter of condoning the delay. The Hon'ble Supreme Court  in the case of  Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, A.I.R. 1987 S.C. 1353,  has held that in the matter of condonation of delay the Court ought to take a liberal view as nobody is going to gain by delaying the proceedings.  In the present case the petitioner was not going to gain by delaying the filing of appeal and in fact the delay was of only one day.  Delay of one day ought to have been condoned. In this view of the matter, the writ petition succeeds and is allowed.  The impugned order dated 31.1.2001 is set aside.    The Commissioner of Income Tax shall decide the appeal in accordance with law on merits.




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