TaxTMI 
TaxTMI 
2009 (7) TMI 728
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and finally decided. 3. The present appeal under section 260A of the Income-tax Act, 1961 (hereinafter referred to as "the Act") is directed against the order of the Tribunal dated July 8, 2005 for the assessment year 2001-02, whereby the Tribunal has rejected the appeal of the appellant as barred by limitation arising out of the order of the Commissioner of Income-tax (Appeals) dated September 25, 2002. 4. The question for consideration is whether the Tribunal was justified in refusing to condone the delay and rejecting the delay as barred by limitation. 5. Assessment order under section 144 of the Act was passed by the Income-tax Officer, Ward 2(3), Meerut by order dated March 5, 2002. Aggrieved by the order dated March 5, 2002, the appellant filed an appeal on April 8, 2002 before the Commissioner of Income-tax (Appeals). The said appeal was dismissed by the Commissioner of Income-tax (Appeals) by order dated September 25, 2002 and the said order was served upon the appellant on November 18, 2002. An application under section 154 of the Act for rectification of the order dated September 25, 2002 was filed on December 23, 2002 but the same was re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ugned order passed by the Tribunal and has submitted that the appellant has not acted with reasonable diligence in prosecuting the appeal and no sufficient cause has been shown by the appellant for condoning the delay, therefore, no interference in the matter is warranted. He has further submitted that there was no justification for the appellant to have waited for such a long time to avail of the remedy of filing an appeal before the Tribunal. 8. Heard the learned counsel for the parties and perused the record. 9. Before proceeding to examine the rival contentions of the parties in the matter it would be useful to reproduce paragraph Nos. 2, 3 and 4 of the affidavit dated October 16, 2004 filed in support of the delay condonation application which reads as under : " (2) That being aggrieved by the order of the learned Commissioner of Income-tax (Appeals), I decided to file an appeal before the Income-tax Appellate Tribunal and for that purpose I entrusted the matter to M/s. Malik and Co., Advocates, Meerut. (3) That I deposited Rs. 11,500 towards statutory filing fee and other miscellaneous expenses on December 21, 2002 in the office of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re the Tribunal. A copy of the account as appearing in the ledger of M/s. Malik and Co. showing the receiving of the amount was also filed before the Tribunal and this fact has not been disputed by the Department. Therefore, in view of the aforesaid facts the filing of any affidavit of the local counsel was not required. 12. It is also noteworthy that an application under section 154 of the Act was filed against the order dated September 25, 2002 well within time. There is no reason to disbelieve the contention of the appellant, that he was advised by his counsel to file an application under section 154 of the Act for the rectification of the order dated September 25, 2002 and the pendency of the said application had caused the delay in filing the appeal before the Tribunal. The apex court in the case of State of West Bengal v. Administrator, Howrah Municipalities, AIR 1972 SC 749 has held that if a party had acted in a particular manner on a wrong advice given by his local advisor he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under section 5 of the Limitation Act. It is also be held in the said case that the words "sufficie....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... v. Ram Prakash Kalra [1987] (Supp.) SCC 339, the Supreme Court took the view that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. 18. The apex court in State of Nagaland v. Lipok Ao [2005] 3 SCC 752 has observed in para 9 of the judgment as follows (page 757) : " The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause, and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M.Krishnamurthy [1998] 7 SCC 123 it was held by this court that section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient. Although no special indulgence can be shown to the Government which, in....