1982 (3) TMI 30 - HC - Income Tax

Summary

Issues:
- Application for reference under s. 256(2) of the I.T. Act, 1961
- Calculation error leading to delay in filing the application
- Claim for condonation of delay based on mistake by counsel's clerk
- Validity of explanation for the delay
- Relevance of certified copy in the application
- Date of service of intimation to the petitioner
- Power-of-attorney date in favor of the counsel

Analysis:

The judgment pertains to an application filed under s. 256(2) of the I.T. Act, 1961, seeking a reference from the Income-tax Appellate Tribunal's order for the assessment year 1972-73. The order refusing to make a reference under s. 256(1) was passed on 30th July, 1980. The petitioner sought condonation of delay in filing the application, attributing the delay to a calculation error by the record clerk of the advocate. The petitioner claimed that the delay was not due to negligence but a mistake in calculating the limitation period, which should be condoned.

The record clerk's explanation for the delay included mistakenly excluding a period under the belief that it was excludable due to the court's winter vacation. However, the court noted that this explanation was not valid as the vacation period can only be added if the filing is done on the first date after the court reopens, which was not the case here. The court emphasized that the application could have been filed within the six-month limitation period without any technical impediments, as no certified copy was required.

Moreover, it was revealed during the hearing that the petitioner was actually served before the date claimed in the application. Additionally, the power-of-attorney in favor of the counsel who filed the application was dated after the purported deadline. The court, considering these factors, rejected the explanation provided for the delay and concluded that the delay should not be condoned. Consequently, the court dismissed the application as time-barred but refrained from passing any orders regarding costs due to the circumstances of the case.