2. The appeal is against the order of the Commissioner (Appeals) dismissing the appeal before him on limitation. In his order, the Commissioner finds that the appellant did not file an application for condonation of the delay in filing the appeal of about two months in excess of the prescribed period of three months. Since that is the case, the Commissioner should have given an opportunity to the appellant to show cause why the application is not filed on the grounds of limitation. In point of fact the Commissioner records in his order the fact of the hearing by him of the representative of the appellant on merits, but does not record that they were informed that the appeal was delayed.
3. Counsel for the appellant draws our attention to a letter dated 6-9-2001 addressed to the Commissioner (Appeals) in which there is a sentence "We also tried to file appeal but the same was not accepted since there is no appealable order." He says that the staff concerned in receiving the appeals in the Commissioner (Appeals)'s office refused to accept the appeal on the ground that the communication of the Deputy Commissioner which was appealed before the Commissioner (Appeals) was not in the appealable order. We have no evidence at present in support of this contention or even the letter dated 6-9-2001 has been received in the Commissioner's office. Counsel for the appellant states that to establish the receipt, his client is willing to file an affidavit in respect of this claim.
4. If the communication had been received, the Commissioner was bound to consider the ground put forth and would not be correct in saying that no application has been filed for condoning the delay.
5. In these circumstances, we think that the question of delay be examined once again by the Commissioner (Appeals). We therefore allow the appeal and set aside the impugned order. The Commissioner (Appeals) shall consider the affidavit or other material that the appellant may produce before him within two months from the receipt of this order, and giving the appellant a reasonable opportunity of being heard on the application of condonation of delay and pass orders on the application, and thereafter if necessary, on the appeal.