TMI Blog1998 (10) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee under section 43B of the Income-tax Act, 1961, on account of payment of sales tax made by the assessee within the time prescribed by the H. P. Sales Tax Act. The appeal having been decided adversely to the petitioner assessee, the assessee filed an application under section 256(1) of the Income-tax Act, 1961, seeking reference to the High Court of the question of law arising from the order of the Tribunal. The application was rejected on May 30, 1995, by the Tribunal forming an opinion that the answer to the question was covered by a decision of the Delhi High Court, which is the jurisdictional High Court in Escorts Ltd. v. Union of India [1991] 189 ITR 81 (Delhi). Copy of the order was communicated to the petitioner on June 28, 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he brief. The prayer for condonation of delay has been opposed vehemently on behalf of the Revenue. Learned senior standing counsel for the Revenue has submitted that section 5 of the Limitation Act, 1963, is not applicable to an application under section 256(2) of the Income-tax Act because the limitation for filing the application is provided not by the Limitation Act but by the Income-tax Act itself. It has also submitted that change in the view of the law cannot be a ground for condoning the delay in filing an application. In other words, change in the view of law does not amount to " sufficient cause" within the meaning of section 5 of the Limitation Act. The first question for consideration is whether the applicability of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents for applicability of section 5 of the Limitation Act to such appeals in the light of section 29(2) of the Limitation Act can be said to have been satisfied." For the foregoing reasons, we are of the opinion that section 5 of the Limitation Act, 1963, applies to petitions under section 256(2) of the Income-tax Act, 1961. Such is the view taken by a Division Bench of the Delhi High Court in CIT v. Taylor Instrument Co. (India) Ltd. [1992] 64 Taxman 6. The second question is whether change in the view of the law can be a sufficient cause for condoning the delay in preferring a petition within the meaning of section 5 of the Limitation Act. Learned counsel for the petitioner-assessee has brought to our notice two Full Bench decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no referable question of law arose from its appellate order. So long as the decision of the Delhi High Court in Escorts Ltd.'s case [1991] 189 ITR 81 held the field, it would have served no useful purpose in pursuing the matter further. Rather it would have amounted to an attempt at striking the head against the wall. Shortly thereafter the law was settled by an authoritative pronouncement of the Supreme Court. Promptly the matter was entrusted to counsel for moving the High Court by an appropriate application under section 256(2) of the Income-tax Act. A delay of about 25 days was occasioned for factors attributable to personal inability of counsel for which the litigant cannot be blamed. Factors like gross negligence, contumacy or miscon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive so as to secure adjudication of the lis on merits." In the case at hand, it cannot be held that the petitioner-assessee had abandoned his legal pursuit and submitted to the judgment of the Tribunal by unreasonable delay either preceding or following the pronouncement of the Supreme Court. We are, therefore, of the opinion that sufficient cause within the meaning of section 5 of the Limitation Act is made out for condoning the delay in -filing the petition under section 256(2) of the Income-tax Act. The application is, therefore, allowed. The delay in filing the petition under section 256(2) of the Income-tax Act, 1961, is condoned. It shall be treated to have been filed within the prescribed period of limitation. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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