Delhi H.C : This application has been made by the petitioner for condonation of delay in filing an application under s. 256(2) of the IT Act, 1961 (hereinafter referred to as “said Act”) requiring the Tribunal to refer three questions of law which the Tribunal refused to refer to this Court by its order dated October 25, 1979, passed in the petitioner’s application made under s. 256(1)

Counsel Appeared

K.K. Wadhera with R.C. Pandey, for the Revenue : C.S. Aggarwal, for the Assessee

RABINDRA NATH PYNE, C, J. :

This application has been made by the petitioner for condonation of delay in filing an application under s. 256(2) of the IT Act, 1961 (hereinafter referred to as “said Act”) requiring the Tribunal to refer three questions of law which the Tribunal refused to refer to this Court by its order dated October 25, 1979, passed in the petitioner’s application made under s. 256(1) of the said Act. Inasmuch as the petitioner’s application did not contain full particulars for condonation of delay, the Court, by its order dated April 14, 1988, directed the petitioner’s counsel to file a detailed affidavit stating the dates on which the petition was returned for defects ; when were they refiled and who was the counsel handling the brief on these different dates. Pursuant to such directions, a supplementary affidavit was filed by the petitioner.

Facts relied upon by the petitioner for condonation of delay as stated in the supplementary affidavit filed on behalf of the petitioner are stated hereunder : On May 12, 1980, one Shri M. L. Verma, the then standing counsel for the IT Department filed the above application under s. 256(2) of the said Act. Various objections were raised by the registry including objections as to non-filing of the annexures along with the petition. The petition with the above objections was returned and the same was refiled on December 9, 1981, by Shri Wazir Singh, the then standing counsel for the IT Department. Inasmuch as certain objections were again raised by the registry, the petition was returned in 1982. Shri Wazir Singh, the then counsel for the petitioner, refiled the same on December 22, 1984, after removing the defects with the following note made on the petition : “Defects have been removed. The petitions got mixed up accidentally with other records and have recently been traced and refiled. Delay in filing be condoned.”

4. The registry again raised objections on January 2, 1985, regarding certain defects in the petition and the said Shri Wazir Singh after removing the said defects refiled the same on January 5, 1985. The registry raised some objections and again returned the petition which was refiled by the said Shri Wazir Singh on January 31, 1985.

On February 1, 1985, the registry noted as follows: “Defects removed. Be registered as ITC of 1985 and the delay in refiling after 3 years might be brought to the notice of the Court.”

Again on February 2, 1985, the registry raised objections to the effect that the description of each document should be given in the index of the petition and the same was returned to the said Wazir Singh on February 23, 1985, and on the same date the said Wazir Singh refiled the petition with the note “objections removed”.

On February 28, 1985, the registry passed the same order as made on February 1, 1985. Explaining the delay of three years as noted by the registry, the petitioner has stated that there were three changes of IACs up to September, 1982, viz., one Shri K: Balkrishan, IAC, retired on September 30, 1982. There after, from October 1982 to April 1984, Shri Gujar Mal acted as IAC. From May 1984 to December 1984, Shri A. K. Singh acted as IAC. It is further stated that there were also three changes in ITOs in charge of the matter. Shri S. K. Sachdeva acted up to October, 1982 ; Shri D. N. Sachdeva acted up to September 1983 and temporary charges were held by various ITOs. Shri K. S. Yadav acted as ITO from August 13, 1984, to November 19, 1984, and again temporary charges of the office were taken up by other officers up to December 31, 1984. According to the petitioner, delay was caused due to the above facts.

The question for determination is whether there are sufficient facts explaining the delay of three years in presenting the said application.

It has been observed in the case of CIT vs. Bharat Heavy Electricals Ltd.(1984) 43 CTR (Del) 291: (1987) 168 ITR 499 (Delhi), with reference to an application made under s. 256(2) of the said Act that representation of a petition is only a continuation of the original petition and does not affect the question of limitation in filing the petition.

In the case of Kwality Restaurant & Ice Cream Co. vs. CIT (1985) 46 CTR (Del) 13:(1986) 158 ITR 188 (Delhi), with regard to condonation of delay in making an application under s. 256(2) of the IT Act, it has been observed by a Division Bench of this Court that one of the principles on which s. 5 of the Indian Limitation Act, 1908, has been applied is that if there is a plausible explanation for the delay, it should be accepted and that further no party should be penalised for the default of his agent or counsel.

In the instant case, the order of the Tribunal dated October 25, 1979, dismissing the petitioner’s application under s. 256(1) was received by the petitioner on November 12, 1979. The instant application being filed on May 12, 1980, was within the period of six months from the date of service of the notice of refusal of the Tribunal’s order made under s.256(1) of the said Act. Therefore, applying the principle as laid down in the case of CIT vs. Bharat Heavy Electricals Ltd. (supra) the instant petition is not barred under s. 256(2) of the said Act. However, since the explanation for the delay has been stated in the supplementary affidavit, we like to deal with the same.In the instant case, the petition was returned to counsel several times due to defects in the petition and time was taken for removing the defects. The defects were due to the default of counsel for which the petitioner cannot be made liable nor should he be penalised. Further, there were changes of the officers, i.e., AACs and ITO, who were looking into the matter. These changes were made due to official reasons and in the course of official business. Hence, the delay caused by the changes of the officers who were looking into the matter amounts to sufficient explanation for the delay for which the petitioner should not be penalised.

In the above view of the matter, this application succeeds and we pass the order as prayed for in the application.

[Citation : 177 ITR 479]