The difference of opinion has arisen in the matter to relating to condoning  the delay in filing of appeal by the assessee before the Tribunal.  The appeal fed by the assessee was barred by limitation by 571 days. The question referred was “ Whether , in the facts and circumstances of the case , the explanations furnished by the assssee for not filing g the appeal with in the prescribed period of limitation would constitute  sufficient cause or not and accordingly whether the delay in filing the appeal should be condoned or not “  

On reference third  member held that mistake of counsel may be taken into account in condoning delay. Claim that the delay was caused by Counsel not communicating the order has to be accepted unless it is shown that blame put on counsel is with malafide intentions in order to cover up mistake/lapse on the part of the assessee. As per human conduct and probabilities, a professional counsel cannot be expected to admit his lapses as it may affect his reputation. Also, if the appeal is adjudicated on merits, refusing to condone the delay is an error . Case laws referred;

(a)Collector, Land Acquisition v. Mst. Katiji & ors (1987) 167 ITR 471(SC)

(b) CIT v. West Bengal Infrastructure Development finance
Corp. Ltd ((2011) 334 ITR 269)(SC)

(c) Bhivchandra Shankar More vs. BaluGangaram More
(2019) 6 SCC 387 (SC)

(d) Elnet Technologies Ltd v. DCIT (2018) 259 Taxman 593 ( Mad) (HC)  taxmann.com
219)(Mad)(HC)

(e) Sivalogam Steels (P) Ltd vs. CESTAT (2016)70 taxmann.com
301)(Mad) (HC))

(f) E-Governance Society vs. CIT (E) (2019) 261 taxman
289)(HP)(HC)

(g) Lahoti Overseas Ltd v. DCIT (ITNo.3786/Mum/2012dt 18 -03 -2016 )( Mum) (Trib) www.itatonline.org

(h)Vijayeswari Textiles Ltd v CIT ( 2002) 256  ITR 560 ( Mad) (HC)

( i) Esha Bhattachrjee v Managing Committee of Raghunathpur Nafar Acadey & Ors ( CANOs . 8183 -8184 of 2013 dt 13 -09 2013  ( SC))

(j) G. Ramegowda Major and others  v. Special Land Acquisition ( 1998) 2 SCC (2)142 /1988 AIR  897 (SC)

(k)Oriental Aroma Chemical Industries Ltd v. Gujarat Industrial Development Corporation ( 2010) 5 SCC 459

(l) Improvement Trust Ludhiana v  Ujagar Singh and Ors  ( 2010) 6 SCC 786

(m).State   of Kerala v .Krishna Kurup Madava Kurup  AIR  1971 Ker 211  ( 215)

( ITA No.169/Asr/2015, dt. 29.10.2019) (AY. 2006-07)