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TMI Blog2005 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order of the CIT, the Assessing Officer determined the total income of the assessee, other than long-term capital gains at Rs. 21,41,460. Aggrieved by the said order of reassessment, assessee initially preferred an appeal directly before the Tribunal, being ITA No. 1869/Hyd./96. The said appeal was dismissed by the Tribunal in limine on the ground that it was not maintainable. 2.3 Thereafter, assessee preferred appeal before the CIT(A) which was considered to be with a delay of over five and half years since the date of service of the reassessment order dated 24-7-1996 passed in pursuance of the order of Commissioner under section 263. Assessee has also filed a petition seeking condonation of the said delay. However, the CIT(A) was of the view that the delay was not satisfactorily explained. He also referred to the decision of the Punjab and Haryana High Court in the case of CIT v. Rammohan Kabra [2002] 257 ITR 773, wherein considering the refusal of the Tribunal to condone the delay of five days in the filing of the appeal by the Revenue, dismissed the Reference by the Revenue under section 256(2) on the ground that the time-limit should not be construed lightly, by treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndonation of delay and condoned the delay and should have heard the appeal on merits. Reliance is also placed on the decision of the Tribunal in the case of Prominent Builders & Investors (P) Ltd. v. IAC [1985] 11 ITD 327 (Delhi). 4. On the other hand, the learned representative for the revenue countered, to say in brief, by defending the order impugned, besides submitting that even after the receipt of the Tribunal order dismissing the appeal of the assessee as not maintainable, there was delay in filing the appeal before the CIT(A). 5.1 Rival submissions heard and relevant orders read. After doing so, we are of the considered opinion that the stand of the assessee has substantial force unlike the defence of the Revenue for the reasons following- 5.2 It is no doubt true that the appeal before the CIT(A) impugning the reassessment order of the Assessing Officer dated 24-7-1996, passed under section 143(3) read with section 263, was time-barred by over five and half years, and it was indeed a substantial delay. However, the assessee was not silent during the intervening period of five and half years, as it has (mistakenly) filed an appeal against that order of the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go to a right consultant, having suffered earlier under a wrong consultant, and correctly prepare the appeal before the proper appellate forum. 5.3 We may now consider the reasonableness of the cause for the delay in preferring the first appeal before the CIT(A) in the light of the case-law on the point. As already noted above, the reason for the delay in the instant case is prosecuting an appeal before a wrong forum, viz. directly before the Tribunal instead of before the CIT(A), on the basis of a wrong advice- 5.4 In the case of Firm Bishan Das Brij Lal v. Firm Brij Mohan Lakhmi Narain AIR 1935 Lahore 844 the Lahore High Court, in similar circumstances examining the provisions of section 5 of the Limitation Act, 1908 held that time spent in another proceeding with due diligence in another Court extends limitation. Relevant portion of the head note of the said decision reads as under- "An appeal is not time-barred when sufficient cause within the meaning of section 5 is shown, by the appellant for not filing it within time as he was prosecuting with due diligence his application for review in the lower appellate Court." 5.5 Similarly, in the case of Noor Beg v. Ch. Abdul Rahma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the litigant or an attempt to save limitation in an underhand way. The High Court unfortunately never considered the matter from this angle. If it had, it would have seen quite clearly that there was no attempt to avoid the Limitation Act but rather to follow it albeit on a wrong reading of the situation. The High Court took the view that Mr. Raizada being an Advocate of 34 years' standing could not possibly make the mistake in view of the clear provisions on the subject of appeals existing under section 39(1) of the Punjab Courts Act, and therefore, his advice to file the appeal before the District Court would not come to the rescue of the appellant under section 5 of the Limitation Act. The Supreme Court upset this approach. I am of the view that legal advice given by the Members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must, of course, see whether, in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la fides or element of recklessness or ruse. If neither is present, the legal advice, honestly and actually given, must be treated as sufficient cause for condoning the delay for the purpose of computing the limitations. Therefore, the delay in filing the appeals before the Commissioner (Appeals) in the instant case, was required to be condoned. Facts and circumstances, huge delay caused and the reason therefor being almost the same on the identical issue involved, as in the instant case, the aforesaid decision of the Delhi Bench of the Tribunal, which has duly taken in aid the decisions of the Apex Court and other Courts discussed above, squarely applies to the instant case, in the absence of any material to prove that the assessee has not acted bona fide or in good faith and with due diligence while initially prosecuting its appeal against the order of reassessment dated 24-7-1996 directly before the Tribunal instead of before the CIT(A). 5.8 In the case of Ram Mohan Kabra and relied upon by the learned CIT(A) in the order impugned herein, though the delay involved in filing appeal by the Revenue before the Tribunal was only five days and was claimed to be on account of 'bona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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