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TMI Blog2012 (9) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... n ITA No. 720/CHD/2011, for the assessment year 2005-06, claiming the following substantial question of law:- "A. Whether ITAT was justified in dismissing the appeal of the appellant ignoring well settled law of Condonation of Delay and that too delay having caused on the part of the counsel of the appellant and also not considering the fact that CIT(A) having not considered the merits of the case especially when huge stake of appellant was involved which was devoid of merits and against the ratio of judgment laid down by Hon'ble Supreme Court of India in the case of COMMISSIONER OF INCOME TAX, KOLKATA-II VS. WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORPORATION LIMITED 56 DTR 351 (SC)? B. That the order of the Tribunal is legally u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal was filed on 5.7.2011 resulting in delay of 251 days. According to the learned counsel for the appellant, the papers were handed over to the counsel Shri Vijay Vohra in September, 2010 for filing the appeal and since the counsel was busy in filing the income tax returns which are normally due in September/ October of each year and the counsel thereafter having inadvertently placed the said papers in other file which had resulted in delay in filing the appeal. Thus, there was sufficient cause for not filing the appeal within time. Affidavit of Shri Vijay Vohra, Advocate was also filed which was to the following effect:- "I Vijay Vohra S/o Shri Madan Lal Vohra R/o 26-A, New Lajpat Nagar, Ludhiana do hereby solemnly declare as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is now being filed. 8. That the above lapse occurred only on account of the lapse in my office by me and my office staff and which is highly regretted." 7. This Court in VAT Appeal No. 47 of 2012 (M/s Hansaflon Plasto Chem. Ltd v. State of Haryana and others) decided on 5.7.2012 following the decisions of the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, (2010) 5 SCC 459 and R.B. Ramlingam v. R.B. Bhavaneshwari 2009(1) RCR (Civil) 892 had analyzed the broad principles for condonation of delay under Section 5 of the Limitation Act, 1963 as under:- "6. From the above, it emerges that the law of limitation has been enacted which is based on public policy so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting with due care and caution, the delay had occurred due to circumstances beyond his control and was inevitable." 8. The question regarding whether there is sufficient cause or not, depends upon each case and primarily is a question of fact to be considered taking into totality of events which had taken place in a particular case. The counsel who had filed the appeal before the Tribunal having furnished his affidavit accepting the cause of delay and the explanation being plausible leads to the conclusion that there was sufficient cause for delay in filing the appeal. Once that was so, the application for condonation of delay ought to have been allowed. 9. In view of the above, it is held that the Tribunal was not right in refusing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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