D.K. Kapur, J.
1. The petitioner filed this application under s. 256(2) of the I.T. Act, 1961, seeking a reference from the Income-tax Appellate Tribunal's order passed in relation to the assessment year 1972-73 on March 11, 1981. The order refusing to make a reference under s. 256(1) was passed on July 30, 1980. The limitation period prescribed by sub-s.(2) of s. 256 of the Act is six month from the date on which the assessed or the Commissioner is served with a notice of the refusal to state a case to the High Court. According to the application filed for condoning the delay, which is C.M. No. 1292/81, the petitioner was served on August 24, 1980, and hence if this is correct, the limitation period would expire on February 23, 1981. The Explanationn for the delay is that record clerk of M/s. K. A. Sethi, advocate, wrongly calculated the limitation period to expire on March 11, 1981, 'instead of February 11, 1981', and hence was belated. The applicant claimed that the delay was not on account of any negligence, but was owning to calculation and, thereforee, the delay should be condoned.
2. He could not see how the date February 11, 1981, had been stated in this application, so we asked the applicant to submit a further affidavit clarifying the situation. Another affidavit of Shri Joginder Lal, record clerk of Shri K. A. Sethi, advocate, has been filed. This states as follows :
'3. That while calculating the period of limitation of 6 months I had excluded the period from 20-12-80 to 4-1-81 under the belief that since during the period referred, the High Court was closed for winter vacation, this period was excludible from the period of limitation, by process I had marked the period of limitation as March 11, 1978.
4. That from 24-8-80 the six months expired on 23-2-81, i.e., 183 days. The date of March 11, 1981, was arrived at by adding the 16 days as enumerated in para. 3 above.'
When this matter came for hearing, learned counsel for the Department stated that even the date, August 24, 1980 was wrong and actually the service was effected on August 16, 1980. Learned counsel for the assessed agreed that this was the date shown in the Income-tax Appellate Tribunal's record, but claimed that as the assessed was living in Amritsar, she only got the order on August 24, 1980.
3. It was urged before us that the petitioner was entitled to get the benefit of a mistake by her counsel or his clerk as has been held in many reporter cases. Reference was made to Kuldip Singh v. Krishan Kumar, : AIR1974Delhi145 , decided by Prithvi Raj J. In that case the clerk had misplaced the copy and there were exceptional circumstances for condoning the delay. What had happened was that the appeal was filed on July 10, 1972, along with an application for exempting the filing of the certified copy of the judgment. (It was second appeal under the Delhi Rent Control Act, 1958). The limitation period expired on August 1, 1972, but the certified copy was filed on August 8, 1972, although it had been ready earlier and had been delivered for filing in the court. The Explanationn by the appellant was that the document had been misplaced in some other file by the clerk and this Explanationn was accepted.
4. It is noteworthy that in the said case the appeal without the certified copy was filed with in the period of limitation, but only a document which had to be filed later was misplaced leading to the condensation of delay application and its eventual allowance.
5. In the present case, the application for reference has itself been filed late and on account of calculation error by the record clerk of an advocate. There is authority for the proposition that a bona fide mistake of counsel or his clerk can be a ground for condensation do delay, but it must essentially depend on the circumstances of the case.
6. The Explanationn of the clerk i the present case to the effect that he had allowed the period of the winter vacation as an additional period of limitation is not at all a valid Explanationn. In law, the vacation period opens and is of practical application only if the limitation period expires during the vacation period. Hence, the Explanationn in the present case is of no benefit to the applicant.
7. Furthermore, in the present case, the certified copy is necessary at all. The application can be filed within six months of the service of the intimation that the application under s. 256(1) has been refused. There is a long period of limitation and the technical requirements connected with the filing of a second appeal which required the filing of a certified copy of the appellate court's judgment and the certified copy of the trial court's judgment, do not exist. So, there was no impediment at all to the filing of the application on any day during the period of six months.
8. Furthermore, the petitioner was actually served before August 24, 1980.
9. In addition to all this, we find that the power-of-attorney (vakalatnama) in favor of the counsel who filed the application in this court is dated March 11, 1981.
10. We accordingly cannot accept the Explanationn that this is a fit case in which the delay should be condoned. We accordingly reject the application for condensation of delay and accordingly dismiss I.T.C. No. 44 of 1981, as being barred by time. However, we would refrain from passing orders regarding costs in view of the circumstances in which the application has been dismissed.