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TMI Blog1994 (7) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... e causes shown by the assessee in its petition for condonation of delay are not bona fide. From the actual due date for filing the appeal until the actual date of filing it, in other words, for the entire delay of 145 days, the assessee should explain cause for each day's delay. Hence, on this preliminary point itself the appeal of the assessee deserves to be rejected in limine. 3. On the other hand, the learned counsel for the assessee countered that the service of the order impugned has been effected upon not on the assessee but on the counsel of the assessee. Hence, according to s. 282(2) of the IT Act, service should have been effected on the assessee itself. The appellate order dt.7th June, 1989was served on the counsel of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission of the counsel which is sufficient cause for condonation of delay. Hence, the issue may be sympathetically considered and the delay condoned for hearing the delay. Reliance is also placed on the decisions following: (1)Concordof India Indusrance Co. Ltd. vs. Smt. Nirmala Devi & Ors. (1979) 118 ITR 507 (SC); (2) Collector, Land Acquisition vs. Mst. Katiji (1987) 62 CTR (Syn)(SC) 23 : (1987) 167 ITR 471 (SC); (3) Shri Sidh & Co. vs. ITAT & Ors. (1992) 194 ITR 747 (All). 4. Rival submissions heard and relevant case laws read besides the petition for condonation of delay and the affidavit of the counsel. After a careful analysis of the issue in question, though we do realise that the cause of substantial justice deserves to be pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case in its favour. Thus, the assessee fails to get any appreciation on the point in this regard. 5. That apart the oversight or the act of omission or busyness of the assessee or its counsel may be appreciated if the delay would be to a marginal extent but it cannot be appreciated if it would be to the extent of 145 days' delay as in the instant case especially when nothing has been demonstrated to prove excepting a self-serving statement in the form of an affidavit to support the cause shown in the petition for condoning the delay. If the assessee would have slept over his right without ascertaining as to what happened to the proceedings before the first appellate authority or any authority to a large number of days, as involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sufficient ground. This is propounded by the very same decision in the case of Concord of India Insurance Co. Ltd., cited supra, by the Hon'ble Supreme Court, emphasising further that it is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way. It further states that the Court must see whether in such cases there is any taint or mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under s. 5 of the Limitation Act is being considered. In the instant case none of the ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of AIR 1980 All 185. What may be sufficient cause in one case may be otherwise in another and what is of essence is whether it was an act of prudent or reasonable man. We do not consider that the act of the assessee or his counsel is prudent or reasonable in the instant appeal. This view of ours is also strengthened by the decision in the case of (1981) 7 All LR 27 at 29. The fundamental rule of guidance for the exercise of discretion under the section is to see as to whether the party claiming the indulgence has been reasonably diligent in prosecuting his appeal or application and this rule we do not find, in our opinion, has been complied with either by the assessee or by his counsel. This view of ours is also further stre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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