RAJU Versus THE COMMISSIONER OF INCOME-TAX, NAGPUR

ORDER

MOHTA, J.‑‑ At the instance of the assessee, the following question is referred in this reference under the Income‑tax Act, 1962:

"Whether on the facts and in the circumstances of the case, the Tribunal exercised its discretion under section 33(2‑A) of the Income‑tax Act, 1922 in a judicial manner in refusing to condone the delay of 520 days in filing the appeal by the assessee for the assessment year 1951‑52"

2. The point arises against the following factual background. The appeal filed by the assessee before the A. A. C. through his Advocate who also happened to be his natural father was fixed for final hearing at Akola on 22nd Feburary, 1963 on which day certain account books were to be produced in support of a contention that certain amount was nothing but accumulations of the amounts received from the H. U. F. By application, dated 18th February, 1963 the learned Advocate applied by post for adjournment and requested that the appeal may be heard at Wardha. This application was received by the Appellate Assistant Commissioner on 19th February, 1963. The appeal was ultimately fixed for final hearing on 25th June, 1963 and the notice of the hearing was served on the assessee. None appeared and the appeal was decided at camp Wardha, on 30th June, 1963. The order was communicated on 11th September, 1963. Mamorandum of appeal was however, received by post by the Tribunal on 12th April, 1965. Thus, there was a delay of 520 days in filing the appeal. The Tribunal refused to condone the delay and hence this reference.

3. The reasons for the delay as stated in the application for condonation of delay are as under: On 18th September, 1963, the assessee filed application under section 35 of the I. T. Act for rectification of the mistake in the appellate order. On 30th September 1963, the A. A. C. communicated to the assessee that "no question of rectification arises. Yet, in the interest of equity, I give you an opportunity of being heard". The hearing was fixed on 10th October, 1963. Assessee did not appear on that date and sought for adjournment again. As no further communication was received from the A.A.C, the assessee addressed reminders. Ultimately, on 23‑3‑1965, the matter was fixed for hearing at Wardha. The A. A. C. orally reiterated the stand taken on 30th September, 1963 that there was no question of rectification at all and informed that official written order about the result would follow. Having known the mind of the A. A. C. regular appeal before the Tribunal was filed on 12th April,1965. Thus, the delay was bona fide in prosecuting the other remedy in wrong forum.

4. Now, it is obvious that application under section 35 of rectification was wholly misconceived under the circumstances. Indeed, this aspect is not fairly disputed by Shri Thakkar, the learned Advocate, appearing for the assessee. The argument is that the assessee should not be made to suffer for the genuine mistake of his counsel. In support of this, proposition, reliance was also placed on Supreme Court decision in the case of Mata Din v. Narayana AIR 1970 SC 1953.

5. Now, it is not as if that every mistake of a counsel affords a sufficient cause for condonation of delay. All depends upon facts and) circumstances of each case. In the peculiar facts and circumstances of that case, the Supreme Court arrived at a conclusion that the filing of an appeal in a wrong Court was due to bona fide mistake and, therefore, delay was condoned.

6. We have already noticed the facts of this case. The whole question is whether the appeal was prosecuted with due care and attention. Having regard to the entire background of the case which need not he repeated and the fact that the learned counsel happened to be the natural father of the assessee, it is difficult to hold that any error of law has been committed by the Tribunal in refusing to condone the delay. Hence, the question is answered in the affirmative and in favour of the revenue. The applicant to bear the costs of this reference.

M.B.A. Reference answered in affirmative