appellant has filed this appeal to Tribunal objecting to order of Commissioner (Appeals) dated 29-3-1984 dismissing appeal file by appellant before Commissioner (Appeals) as out of time and also declining to accept plea of appellant for condonation of delay of 63 days in said appeal before Commissioner (Appeals). 2. facts giving rise to present appeal are following: appellant-company was served with demand notice and assessment order for assessment year 1980-81 on 27-9-1983 and last date for filing of appeal against said order to Commissioner (Appeals) was 27-10- 1983. appellant filed appeal on 31-12-1983 resulting in delay of 63 days. In response to show-cause notice issued by Commissioner (Appeals), appellant submitted written reply dated 29-3-1984 and requested commissioner (Appeals) to condone delay for reasons stated in said letter. Commissioner (Appeals), however, held that service of demand notice on appellant's accountant on 27-9-1983 was not denied, that if accountant was indulging in heavy drinking and management knew that he was negligent, it was duty of appellant to remain alert in matter. Commissioner (Appeals) was of view that fact that director did not check table of accountant, would not be sufficient cause for condoning delay of over two months. He further held that if managing director was not at station, as contended, other director ought to have looked after these matters. He, therefore, refused to condone delay and dismissed appeal as time barred. It is against this order of Commissioner (Appeals) that present appeal has been filed by appellant- company. 3. Shri V. H. Patil, learned counsel for appellant, filed before us copy of letter dated 29-3-1984 written by appellant to commissioner (Appeals) for condonation of delay. He also filed before us affidavit of Shri Bhimraj Kishanlal Jain, managing director of appellant-company, which reiterates facts stated in letter dated 29-3-1984. learned counsel submitted that delay of 63 days was due to facts explained in affidavit and letter referred to above, that these facts were beyond control of appellant and that moment directors of appellant-company came to know of receipt of assessment order and demand notice, they immediately arranged for filing of appeal before Commissioner (Appeals). He, therefore, submitted that delay of 63 days on part of appellant-company was not due to any negligence or lack of diligence, but due to circumstances beyond their control and that Commissioner (Appeals) ought to have condoned delay by accepting explanation offered by appellant-company as constituting sufficient cause for said delay. 4. Shri R. D. Mahadeshwar, learned departmental representative, opposed these contentions by pointing out that appeal to Tribunal was not itself maintainable. He argued that order passed by Commissioner (Appeals) was one under section 249(3) of Income-tax Act, 1961 ('the Act'), which corresponds to section 30(2) of Indian Income-tax, 1922 ('the 1922 Act'), and that, therefore, no appeal would lie to Tribunal against order of Commissioner (Appeals) refusing to condone delay in present case. According to revenue, order of Commissioner (Appeals) refusing to condone delay was final and that no appeal would lie to Tribunal against said order under section 253(1) (a) of Act. In support of his submissions, Shri R. D. Mahadeshwar relied on decision of Bombay High Court in K. K. Porbunderwalla v. CIT [1952] 21 ITR 63, Mahabir Prasad Niranjanlal v. CIT [1955] 27 ITR 268 (All). learned counsel for assessee, Shri Patil, pointed out that these decisions are no longer good law in view of decision of Supreme Court in Mela Ram & Sons v. CIT [1956] 29 ITR 607. 5. We are really surprised at objections taken by learned departmental representative, since conflict of judicial opinion on issue raised by revenue, has been set at rest by decision of Supreme Court in Mela Ram & Sons' case (supra). It is sufficient to refer to head note in this decision wherein it has been held that order by AAC holding that there was no sufficient reason for excusing delay under section 30(2) of Income- tax Act, and rejecting appeal as time barred, is order passed under section 31 and appeal lies from that order to Tribunal and that it makes no difference whether order of dismissal is made before or after appeal is admitted. Supreme Court further held that appeal presented out of times admitted. Supreme Court further held that appeal presented out of times is appeal and order dismissing it as time barred is one passed in appeal. In this decision, Supreme Court has considered decisions of various High Courts, including two decisions cited by revenue, before resolving conflict among various High Courts. Accordingly, objection of revenue to maintainability of appeal has to be rejected on this short ground. Further, order passed by commissioner (Appeals) in present case has to be treated as order passed under section 251(1) (c), read with section 250 of Act by respectfully following said decision of Supreme Court in case of Mela Ram & Sons (supra). Therefore, present appeal to Tribunal filed under section 253(1) (a) is maintainable. 6. On merits of case we are satisfied that order of Commissioner (Appeals) dismissing assessee's appeal as time barred is erroneous and unsustainable. In his affidavit, Shri Bhimraj Kishanlal Jain, managing director of appellate-company, states that he is looking after administrative work of appellant-company, that at relevant time he was not in Bombay, as he had gone to his native place from 21-10-1983 to 15-11- 1983 to attend to some social ceremony and that he met with accident there which confined him to bed for nearly six weeks. It is further stated that on account of this he could not check work of his former accountant, Shri D. R. Parinja, who was not attending to his work diligently on account of his habit of heavy drinking. It has been further explained by managing director that other director, Shri Pratiraj is incharge of factory of appellant-company at Andheri. managing director further states that new accountant, Shri Vimal Navlakhan, who was appointed in or about November/December 1983, came across assessment order and demand notice after dismissal of former accountant that he immediately brought it to notice of managing director and that thereafter managing director arranged for immediate filing of appeal to Commissioner (Appeals) on 31-12-1983. 7. In our view, these facts clearly bring out circumstances in which appellant-company could not file appeal within statutory period of 30 days. It can hardly be disputed that company or for that matter any employer has to rely on his subordinates for carrying out duties entrusted to them, properly. In present case, it is seen that former accountant of appellant-company was not attending to his work with due care and diligence, as he should, and for his negligence and in difference to his work, appellant- company had expelled him from service. facts stated by managing director in his affidavit only reiterate facts already stated in letter to Commissioner (Appeals) and these facts have not been found to be incorrect by Commissioner (Appeals) in his order. It is also noticed that managing director met with accident and was accident and was immobilised for nearly six weeks, as he was advised complete bed rest. It is clear that moment managing director came to know of receipt of demand notice and assessment order by his former accountant on 27-9-1983, he arranged for filing of appeal to Commissioner (Appeals) on 31-12-1983. There is no material or circumstances which would indicate that facts stated by managing director of appellant-company are untrue or improbable. Having regard to these facts, we consider that these facts would constitute sufficient cause for delay of 63 days in filing of appeal in present case before commissioner (Appeals). We, therefore, hold that decision of Commissioner (Appeals) refusing to condone delay is incorrect. We therefore, condone this delay and admit appeal and restore appeal to file of Commissioner (Appeals) for disposal on merits, after giving opportunity to appellant to substantiate its case. 8. In result, appeal is allowed. 9. In view of above order, stay petition is dismissed as infructuous. *** SUPARIX METAL (P) LTD. v. INCOME TAX OFFICER