VOLTAS LIMITED Vs. DEPUTY COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS writ petition is filed against the orders rejecting the application filed for condonation of delay of 26 days in seeking reference under Section 256(1) of the Income-tax Act, 1961. A common order in the appeals filed by the petitioner was passed by the Tribunal on November 25, 1997, for the assessment years 1988-89 and 1989-90 which was received by counsel for the petitioner on December 20, 1997. The last date for filing application seeking reference was February 8, 1998. However, the application was filed on March 6, 1998, with a delay of 26 days and an application seeking condonation of delay was filed along with the affidavit of the clerk working in the office of the petitioner's counsel stating that the delay has occurred as the original order was misplaced in the office on account of white-washing. Soon after it was traced, the reference is sought. In the impugned order, the application for condonation of delay was rejected on the ground that it was not signed by counsel and no reasons are given for the delay till the last week of January 1998, and further that there is no evidence to establish that the deponent of the affidavit is employed in the office of counsel.

(2.) UNDER Section 256 of the Act, the application for reference has to be filed within 60 days from the date it was served and the proviso therein contemplates condoning the delay up to a period of 30 days. It is evident from the affidavit that the delay has occurred due to misplacement and not tracing the original order in the office of counsel. Normally, as laid down in various pronouncements, the delay aspect has to be liberally considered so as to provide an opportunity to the parties to have a decision on the merits. In this case, the Tribunal fell into error in expecting the explanation for delay even for the days within the limitation period. Moreover, a party should not suffer for the lapses on the part of counsel, especially when the delay is not too long. The explanation and the reasons given in the affidavit do not give scope for any doubt as to bona fides. In view of the above, the application needs to be allowed by giving an opportunity to the petitioner for seeking reference. The impugned order is set aside and the delay is condoned. The writ petition is allowed accordingly. No costs.