The change in law brought about by the decision of the Supreme Court can be a sufficient cause for condoning the delay in filing an application under Section 256(2) of the Income-tax Act, 1961.

( 1 ) AN application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing a petition under Section 256 (2) of the Income-tax Act, 1961 is the subject matter of the present order.

( 2 ) THE facts in brief.

2. 1. BEFORE the Income Tax Appellate Tribunal , the subject matter of controversy inter alia was disallowance of Rs. 2,15,453. 00 claimed by the assessee under Section 43-B 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 30. 5. 95 by the Tribunal forming an opinion that the answer to the question was covered by a decision of Delhi High Court, which is jurisdiction High Court in Escorts Ltd. v. Union of India and Ors. , (1991) 189 ITR 81=43 (1991) DLT 207 (DB ). Copy of the order was communicated to the petitioner on 28. 6. 95.

2. 2. The petitioner was advised not to pursue the matter further inasmuch as it would not yield any result in view of the decision of Delhi High Court being adverse to the assessee. However, then came the judgment of the Supreme Court in Allied Motors (P) Ltd. v. CIT, (1997) 224 ITR 677, wherein the decision of Delhi High Court in Escorts Ltd. s case (supra) was reversed. The judgment of the Supreme Court was delivered on 10th March, 1997. The petitioner became aware of the decision in April, 1997 when the decision was reported in law reports. The petitioner was advised to file the petition u/sec. 256 (2) before the High Court. However, Shri J. R. Goel, the Counsel for the petitioner who was handling the case got busy in the parliamentary elections wherein brother of the Counsel was himself a candidate. Aperiod of about 25 days was lost on this account. On 24. 5. 97 petition under Section 256 (2) of the Income-tax Act accompanied by an application under Section 5 of the Limitation Act setting out the abovesaid facts has been filed.

( 3 ) THE condonation of delay in filing the application is thus sought for on two ground s: partly, the change in the law brought about by the decision of the Supreme Court with out which it would have been futile for the petitioner to have moved the High Court under Section 256 (2) of the Income-tax Act; and partly on account of events attributable to the personal inability of the Counsel for the petitioner who was handling the brief.

( 4 ) THE prayer for condonation of delay has been opposed vehemently on behalf of the Revenue. The 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.

( 5 ) THE first question for consideration is whether the applicability of Section 5 of the Limitation Act, 1963 is at all attracted. It is true that the period of limitation for filing anapplication under Section 256 (2) of the Income-tax Act is provided in Section 256 itself and not by the schedule appended to the Limitation Act. Here the change in law brought by the introduction of Limitation Act, 1963 over its. predecessor enactment assumes significance. Under the Limitation Act, 1908 Section 5 could not be applied to a period of limitation prescribed by special or local law unless its applicability was specifically attracted. Under Section 29 (2) of the Limitation Act