1. At the instance of the assessee, the following question is referred in this reference under the Indian I.T. Act, 1922 :
'Whether, on the facts and in the circumstances of the case, the Tribunal exercised its discretion under section 33(2A) of the Indian Income-tax Act, 1922, in a judicial manner in refusing to condone the delay of 520 days in filing the appeal by the assessee for the assessment year 1951-52 ?'
2. The point arises against the following factual background. The appeal filed by the assessee before the AAC through his advocate, who also happened to be his natural father, was fixed for final hearing at Akola on February 22, 1963, on which day certain account books were to be produced in support of a contention that certain amount was nothing but accumulations of the amounts received from the HUF. By an application, dated February 18, 1963, the learned advocate applied by post for adjournment and requested that the appeal may be heard at Wardha. This application was received by the AAC on February 19, 1963. The appeal was ultimately fixed for final hearing on June 25, 1963, and the notice of the hearing was served on the assessee. None appeared and the appeal was decided at camp, Wardha, on June 30, 1963. The order was communicated on September 11, 1963. Memorandum of appeal was, however, received by post by the Tribunal on April 12, 1965. Thus, there was a delay of 520 days in filing the appeal. The Tribunal refused to condone the delay, and hence this reference.
3. The reasons for the delay as stated in the application for condonation of delay are as under : On September 18, 1963, the assessee filed an application under s. 35 of the Indian I.T. Act, 1922, for rectification of the mistake in the appellate order. On September 30, 1963, the AAC communicated to the assessee 'that no question of rectification arises. Yet, in the interest of equity, I give you an opportunity of being heard.' The hearing was fixed on October 10, 1963. The assessee did not appear on that date and sought for an adjournment again. As no further communication was received from the AAC, the assessee, addressed reminders. Ultimately, on March 23, 1965, the matter was fixed for hearing at Wardha. The AAC orally reiterated the stand taken on September 30, 1963, that there was no question of rectification at all, and informed that the official written order about the result would follow. Having known the mind of the AAC, a regular appeal before the Tribunal was filed on April 12, 1965. Thus the delay was bona fide in prosecuting the other remedy in wrong forum.
4. Now, it is obvious that the application under s. 35 for rectification was wholly misconceived under the circumstances. Indeed, this aspect is not fairly disputed by Shri Thakkar, the learned advocate appearing for the assessee. The argument is that the assessee should not be made to suffer for the genuine mistake of his counsel. In support of this proposition reliance was also placed on the Supreme Court decision in the case of Mata Din v. Narayanan, : 2SCR90 .
5. Now, it is not as if that every mistake of a counsel affords a sufficient cause for condonation of delay. All depends upon the facts and circumstances of each case. In the peculiar facts and circumstances of that case, the Supreme Court arrived at a conclusion that the filing of an appeal in a wrong court was due to bona fide mistake, and, therefore, delay was condoned.
6. We have already noticed the facts of this case. The whole question is whether the appeal was prosecuted with due care and attention. Having regard to the entire background of the case, which need not be repeated, and the fact that the learned counsel happened to be the natural father of the assessee, it is difficult to hold that any error of law has been committed by the Tribunal in refusing to condone the delay. Hence, the question is answered in the affirmative and in favor of the Revenue. The applicant to bear the costs of this reference.