Delhi High Court
Commissioner Of Income-Tax ... vs Ammonia Supplies Corporation ... on 19 August, 1988
Equivalent citations: 1989 177 ITR 479 Delhi
Author: R N C.J.
Bench: R Pyne, G Jain
JUDGMENT
Rabindra Nath Pyne C.J.
1. This application has been made by the petitioner for condensation of delay in filing an application under section 256(2) of the Income-tax Act, 1961 (hereinafter referred to as "said Act") requiring the Appellate 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 section 256(1) of the said Act.
2. Inasmuch as the petitioner's application did not contain full particulars for condensation 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 refilled and who war the counsel handling the brief on these different dates. Pursuant to such directions, a supplementary affidavit was filed by the petitioner.
3. Facts relied upon by the petitioner for condensation 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 Income-tax Department filed the above application under section 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 petitioner with the above objections was returned and the same was refilled on December 9, 1981, by Shri Wazir Singh, the then standing counsel for the Income-tax Department. Inasmuch as certain objects were again raised by the registry, the petition was returned in 1982. Shri Wazir Singh, the then counsel for the petitioner, refilled the same on December 22, 1984, after removing the Defects with the following note made on the petitioner:
"Defects have been removed. The petitions got mixed up accidentally with other records and have recently been traced and refueled. Delay in filing be condoned."
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 refilled the same on January 5, 1985. The registry raised some objections and again returned the petition which was refilled by the said Shri Wazir Singh on January 31, 1985.
4. On February 1, 1985, the registry noted as follows:
"Defects removed. Be registered as ITC of 1985 and the delay in refilling after 3 years might be brought to the notice of the court."
5. Again of 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 "objects removed."
6. On February 28, 1985, the registry passed the same order as made on February 1, 1985.
7. Explaining the delay of three years as noted by the registry, the petitioner has stated that there were three changes of Inspecting Assistant Commissioners up to September, 1982, viz., one Shri K. Balkrishna, Inspecting Assistant Commissioner, retired on September 30, 1982. Thereafter, from October 1982 to April 1984, Shri Gujar Mal acted as Inspecting Assistant Commissioner. From May 1984 to December 1984, Shri A. K. Singh acted as Inspecting Assistant Commissioner. It is further stated that there were also three changes in Income-tax Officers 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 Income-tax Officers. Shri K. S. Yadav acted as Income-tax Officer from August 13, 1984, to November 19, 1984, and again temporary charges of the office were taken up by taken up by other officers up to December 31, 1984. According to the petitioner, delay was caused due to the above facts.
8. The question for determination is whether there are sufficient facts explaining the delay of three years in presenting the said application.
9. It has been observed in the case of CIT v. Bharat Heavy Electricals Ltd. [1987] 168 ITR 499 (Delhi), with reference to an application made under section 256(2) of the said Act that re-presentation of a petition is only a continuation of the original petitioner and does not affect the question of limitation in filing the petition.
10. In the case of Quality Restaurant and Ice Cream Co. v. CIT [1986] 158 ITR 188 (Delhi), with regard to condensation do delay in making an application under section 256(2) of the Income-tax Act, it has been observed by a Division Bench of this court that one of the principles on which section 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.
11. In the instant case, the order of the Tribunal dated October 25, 1979, dismissing the petitioner's application under section 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 section 256(1) of the said Act. Therefore, applying the principle as laid down in the case of CIT v. Bharat Heavy Electricals Ltd. [1987] 168 ITR 499 (Delhi), the instant petition is not barred under section 256(2) of the said Act.
12. However, since the explanation for the delay has been stated in the supplementary affidavit, we like to deal with the same.
13. 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., Appellate Assistant Commissioners and Income-tax Officers, 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.
14. In the above view of the matter, this application succeeds and we pass the order as prayed for in the application.
