The Nilgiris Diary Farm Pvt. Ltd., Bangalore V. DCIT, Bangalore

ITA 1046/BANG/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1313 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 20-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay; Ignorance of law

Judgement Text

ITA.1046/BANG/2016 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'C', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T.A NO.1046/BANG/2016 (ASSESSMENT YEAR : 2010-11) M/S. THE NILGIRIS DAIRY FARM P. LTD, NO.180, MFAR SILVER LINE TECH PARK, I FLOOR, EPIP PHASE II, WHITEFIELD, BENGALURU 560 066 .. APPELLANT PAN : AAATC8121A V. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 12(4), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. NARENDRA SHARMA, ADVOCATE REVENUE BY : SHRI. S. T. SESHADRI, JCIT HEARD ON : 21.08.2018 PRONOUNCED ON : 31.08.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT (A) -7, BENGALURU, DT.09.03.2016, FOR THE A SSESSMENT YEAR 2010-11, ON THE FOLLOWING GROUNDS : ITA.1046/BANG/2016 PAGE - 2 ITA.1046/BANG/2016 PAGE - 3 02. AT THE OUTSET IT WAS SUBMITTED BY THE LD. AR FO R THE ASSESSEE THAT THE FIRST APPELLATE AUTHORITY HAS DISMISSED TH E APPEAL OF THE ASSESSEE , BEING BARRED BY LIMITATION, AS THE APPEA L WAS FILED BY THE ASSESSEE WITH A DELAY OF 407 DAYS. THE LD. AR HAS DRAWN OUR ATTENTION TO PARA 5.7 OF CIT (A)S ORDER, TO THE FO LLOWING EFFECT : 5.7 NO AFFIDAVIT OR DECLARATION HAS BEEN FILED EITH ER BY THE APPELLANT OR BY THE THEN PROFESSIONAL FIRM W HO WAS DEALING WITH THE CASE OF THE APPELLANT. IT IS A LSO TRUE THAT APPEALS HAVING MERITS SHOULD NOT BE THROWN AWA Y MERELY BECAUSE THERE IS SOME DELAY IN FILING THE AP PEAL AND THE APPELLANT SHOULD BE ALLOWED TO PRESS ITS CASE O N MERITS ITA.1046/BANG/2016 PAGE - 4 IN THE INTEREST OF JUSTICE AND FOR THE CAUSE OF JUS TICE. BUT IN THE INSTANT CASE THERE IS AN EXTRAORDINARY DELAY OF 407 DAYS, FOR WHICH THE APPELLANT HAS FAILED TO SHOW 'SUFFICI ENT CAUSE' WHICH COULD JUSTIFY OR PROPERLY EXPLAIN THE DELAY WHICH OCCURRED FROM LAST DAY OF FILING APPEAL AS PE R STATUTORY PROVISIONS OF THE ACT. THE APPELLANT WAS WELL AWARE OF THE FACTUAL AND TECHNICAL ASPECTS OF THE C ASE AS APPELLANT WAS FOLLOWING THE CASE IN SUBSEQUENT ASSE SSMENT YEAR. THE APPELLANT WAS NEVER IN DARK AS ARGUED AND THE APPELLANT NEVER SEEMS TO BE IGNORANT ABOUT THE LAW. THE APPELLANT HAS ALSO FAILED TO GIVE REASONS FOR THE P ERIOD WHEN THE ASSESSMENT PROCEEDINGS OF SUBSEQUENT YEAR WAS INITIATED I.E. 10. 12.2013 AND THE DAY ON WHICH THE APPEAL WAS ACTUALLY FILED I.E. 25.03.2013. 03. IT WAS SUBMITTED BY THE LD. AR THAT THERE WAS S UFFICIENT REASON FOR NOT APPEARING BEFORE THE CIT (A) ON THE DATE OF HEARING. FOR THAT PURPOSES, THE LD. AR HAS DRAWN OUR ATTENTI ON TO THE DECISION OF THE COORDINATE BENCH IN THE MATTER OF M /S. RAGHAVENDRA CONSTRUCTIONS V. ITO [ITA.425/BANG/2012, DT.14.12.2 012], WHEREIN THE COORDINATE BENCH IN PARAS 13 TO 15, HELD AS UND ER : 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OU TSET, WE OBSERVE THAT THE HON'BLE SUPREME COURT, IN THE C ASE OF MST. KATIJI (SUPRA), HAS EXPLAINED THE PRINCIPLES THAT N EED TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR CONDON ATION OF DELAY. THE HON'BLE APEX COURT HAS EMPHASIZED THAT S UBSTANTIAL JUSTICE SHOULD PREVAIL OVER TECHNICAL CONSIDERATION S. THE COURT HAS ALSO EXPLAINED THAT A LITIGANT DOES NOT STAND T O BENEFIT BY LODGING THE APPEAL LATE. THE COURT HAS ALSO EXPLAIN ED THAT EVERY DAY'S DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE TAKEN. THE DOCTRINE MUST BE APPL IED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. IN THE CASE OF SHAKUNTALA HEGDE, L/R OF R.K. HEGDE V. ACIT, ITA NO.2785/BANG/2004 FOR THE A.Y. 1993-94, THE HON'BLE TRIBUNAL CONDONED THE DELAY OF ABOUT 1331 DAYS IN FILING THE APPEAL WHEREIN THE PLEA OF DELAY IN FILING APPEAL DUE TO A DVICE GIVEN BY A NEW COUNSEL WAS ACCEPTED AS SUFFICIENT. THE HON'H LE ITA ITA.1046/BANG/2016 PAGE - 5 NO.425/BANG/2012 KARNATAKA HIGH COURT IN THE CASE O F CIT V. ISRO SATELLITE CENTRE, ITA NO. 532/2008 DATED 28.10 .2011 HAS CONDONED THE DELAY OF FIVE YEARS IN FILING APPEAL B EFORE THEM WHICH WAS EXPLAINED DUE TO DELAY IN GETTING LEGAL A DVICE FROM ITS LEGAL ADVISORS AND GETTING APPROVAL FROM DEPARTMENT OF SCIENCE AND PMO. IN THE AFORESAID DECISION, THE HON'BLE COU RT FOUND THAT THE VERY LIABILITY OF THE ASSESSEE WAS NON-EXI STENT AND THEREFORE CONDONED THE DELAY IN FILING APPEAL. 14. KEEPING IN MIND THE AFORESAID PRINCIPLES, WE SH ALL CONSIDER THE CLAIM OF THE ASSESSEE IN THE PRESENT C ASE. ADMITTEDLY THE ADVICE WAS GIVEN BY THE COUNSEL WHO APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE HONB LE HIGH COURT. THE DECISION OF THE HON'BLE HIGH COURT WAS R ENDERED ON 28.2.2012. THE APPEAL HAS BEEN FILED BY THE ASSESSE E BEFORE THE TRIBUNAL ON 26.3.2012. HENCE, WE FIND THAT THERE HA S BEEN NO WILLFUL NEGLECT ON THE PART OF THE ASSESSEE. IN SUC H MATTERS THE ADVICE OF THE PROFESSIONAL WOULD BE THE POINT OF TI ME AT WHICH THE ASSESSEE WOULD BEGIN TO EXPLORE THE OPTION OF E XHAUSTING ALL LEGAL REMEDIES. WE ARE ALSO OF THE VIEW THAT BY CON DONATION OF DELAY THERE IS NO LOSS TO THE REVENUE AS LEGITIMATE TAXES PAYABLE IN ACCORDANCE WITH LAW ALONE WOULD BE COLLE CTED. WE THEREFORE ACCEPT THE REASON GIVEN FOR CONDONATION O F DELAY IN FILING THE APPEAL. THE DELAY IN FILING THE APPEAL I S ACCORDINGLY CONDONED. 15. AS FAR AS THE MERITS OF THE APPEAL ARE CONCERNE D, WE FIND THAT THE HONBLE HIGH COURT HAS ALREADY ACCEPTED THE PLEA OF THE ASSESSEE THAT THE BALCONY AREAS, WHICH WERE ADDED A S FORMING PART OF THE BUILT OF AREA OF THE 16 FLATS WHICH WER E CONSIDERED AS EX1EEDING THE BUILT UP AREA OF 1500 SQ.FT., WERE CO MMON AREAS AND HAD TO BE EXCLUDED WHILE MEASURING THE BUILT UP AREA. THERE WAS COVERED BALCONY AREA IN THE 16 FLATS AND SUCH C OVERED BALCONY COULD BE USED BY TWO ADJOINING FLATS AND WA S COMMON BETWEEN THEM. THE DVO IN MEASURING THE AREA OF THES E FLATS DIVIDED THE COVERED BALCONY AREA AND APPORTIONED TH EM BETWEEN THE TWO FLATS. THE DEFINITION OF BUILT UP AREA FOR THE PURPOSE OF SEC.80-IB(10) OF THE ACT EXCLUDES AREA WHICH ARE ME ANT FOR COMMON USE. THE FACT THAT IT WAS NOT COMMON AREA FO R ALL THE ITA.1046/BANG/2016 PAGE - 6 FLATS IN THE BUILDING CANNOT BE THE BASIS TO APPORT ION THE AREA OF COVERED BALCONY IN MEASURING THE AREA OF THE TWO AD JOINING FLATS TO WHICH THE COVERED BALCONY WAS COMMON. THE DEFINI TION OF THE BUILT UP AREA IN THE PROVISIONS OF SEC.80-IB(I) DOE S NOT SPEAK OF COMMON AREA FOR ALL FLATS IN A HOUSING PROJECT. THE REFORE THE ASSESSEE SHOULD GET THE BENEFIT OF THE PROVISIONS O F SEC.80IB(10) WHICH ARE EXEMPTION PROVISIONS. IN VIEW OF THE ABOV E, WE HOLD THAT THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION U/ S.80-IB(10) OF THE ACT ON THE PROFITS OF THE 16 FLATS WHICH WER E EXCLUDED BY THE CIT(A) IN THE IMPUGNED ORDER. WE HOLD ACCORDING LY. SIMILAR TO THE FACTS OF THE DECISION IN THE ABOVE M ATTER, THE COORDINATE BENCH IN THE MATTER OF M/S. MEGTRAN EART H MOVERS V. ITO [ ITA NO.10/BANG/2016, DT.05.07.2017] IN PARAS 4.3.1, 4.3.2 AND 5 HELD AS UNDER : 4.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRONOUNCEMENTS CITED. ADMITTEDLY, THERE WAS A DELAY OF ABOUT 11 MONTHS IN FILING THE APPEAL FOR ASST. YEAR 2006-07 BEFORE THE CIT(A) WHICH WAS NOT CONDONED BY THE ID CIT(A) AND THE APP EAL WAS THEREBY DISMISSED IN LIMINE, WITHOUT BEING HEARD OR ADJUDICATED ON MERITS. THE HON'BLE APEX COURT IN T HE CASE OF COLLECTOR, LAND ACQUISITION VS. MST KATIJI AND OTHERS (167 ITR 467) (SC), WHILE LAYING DOWN THE PRINCIPLES FOR CONSIDERING THE MATTERS OF CONDONATI ON OF DELAY IN FILING APPEALS, HAS STATED THAT SUBSTANTIA L JUSTICE SHOULD PREVAIL OVER CONSIDERATIONS. THE HON'BLE COU RT ALSO EXPLAINED THAT APPROACH SHOULD BE TAKEN. THE DOCTRI NE MUST BE APPLIED IN A NATURAL COMMON SENSE AND PRAGMATIC MANNER. CONSIDERING THE AFORESAID PRINCIPLES, WE FI ND FROM THE DETAILS ON RECORD THAT EVEN THE ORDER LEVY ING PENALTY U/S 271(1)(C) OF THE ACT WAS VIRTUALLY PASS ED EX PARTE WITH NO EXAMINATION OF THE ISSUE ON MERITS OF LEVY OF PENALTY SINCE THE ASSESSEE HAD NOT RESPONDED TO THE SHOW CAUSE NOTICES ISSUED. SO ALSO BEFORE THE LD CIT (A) , BY REJECTING THE ASSESSEES PETITION FOR CONDONATION O F DELAY, THE ISSUE ON WHICH PENALTY WAS LEVIED WAS ONCE AGAIN NO T CONSIDERED AND ADJUDICATED ON MERITS. ITA.1046/BANG/2016 PAGE - 7 4.3.2 TAKING INTO ACCOUNT THIS FACTS AND CIRCUMSTAN CES OF THE CASE, AS DISCUSSED ABOVE, WE ARE OF THE OPINION IF THE DELAY OF 11 MONTHS IN FILING THE APPEAL FOR ASST. Y EAR 2006-07 BEFORE THE ID CIT(A) IS CONDONED, THERE SHA LL BE NO LOSS TO REVENUE AS LEGITIMATE TAXES, PENALTY ETC. PA Y ABLE BY THE ASSESSEE IN ACCORDANCE WITH LAW ALONE W ILL BE COLLECTED/LEVIED; WHEREAS IF THE DELAY IS NOT CO NDONED THEN THE ASSESSEE MAY HE PUT TO HARDSHIP AND GREAT DIFFICULTY. IN THIS VIEW OF THE MATTER AND IN THE I NTEREST OF EQUITY AND JUSTICE, WE ARE OF THE CONSIDERED OPINIO N THAT THIS IS A FIT CASE OF CONDONING THE DELAY OF 11 MONTHS IN F ILING THE APPEAL FOR ASST EAR 2006-07 BEFORE THE LD CIT(A) AN D ACCORDINGLY CONDONE THE SAME. WE, THEREFORE, SET AS IDE THE IMPUGNED ORDER OF THE CIT(A) DATED 30/9/2015 FO R ASST. YEAR 2006-07 AND RESTORE THIS MATTER TO HIS F ILE FOR CONSIDERATION ON MERITS AFTER AFFORDING BOTH THE AS SESSEE AND THE AO ADEQUATE OPPORTUNITY OF BEING HEARD AND TO MAKE SUBMISSIONS IN THE MATTER OF LEVIABILITY OR OT HERWISE OF PENALTY U/S 271(1)(C) OF THE ACT. WE HOLD AND DI RECT ACCORDINGLY. 5. IN VIEW OF THE FINDING RENDERED BY US IN RESPECT OF GROUND NO.2 (SUPRA) BY SETTING AS IDE THE IMPUGNED ORDER OF THE CIT(A) DATED 30/9/2-15 FOR ASST. YEAR 2006-0 7, WE REFRAIN FROM COMMENTING ON OR ADJUDICATING THE OTHE R GROUNDS 1 AND 3 TO 8 RAISED BY THE ASSESSEE IN THIS APPEAL ON MERITS OF LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT. 04. PER CONTRA, THE LD. DR RELIED ON THE FOLLOWING DECISIONS : THE SWADESHI COTTON MILLS CO. LTD V. GOVT. OF UP [1 972-LL- 1110-1-(SC)] SPPORTHI SADAN CONVENT V. CIT [(2016) 68 TAXMANN.24 5 (KAR)] JYOTI CHEMICALS V. DCIT [(2009) 27 SOT 433 (MUM)] MOLEX INDIA TOOLING P. LTD V. ACIT [IT(TP)A.839/B/2 009] JCIT V. TRACTORS & FARM EQUIPMENTS LTD [(2007) 104 ITD 149] ITA.1046/BANG/2016 PAGE - 8 IT WAS SUBMITTED BY THE LD. DR THAT THERE WAS A DEL AY IN FILING THE APPEAL FOR A PERIOD OF 407 DAYS AND THE ASSESSEE BE FORE US IS A PRIVATE LIMITED COMPANY AND FURTHER ASSESSEE WAS A WARE OF ITS STATUTORY RIGHT OF FILING THE APPEAL. HOWEVER FOR THE REASONS BEST KNOWN TO THE ASSESSEE, IT HAS NOT FILED APPEAL BEFO RE THE CIT (A) IN TIME. 05. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE WE DECIDE THE MATTER, IT IS INCU MBENT UPON US TO LOOK INTO THE EXPLANATION GIVEN BY THE ASSESSEE BEF ORE THE CIT (A), FOR NOT FILING THE APPEAL. THE CIT (A) IN PARA 5 H AS REPRODUCED THE SUBMISSIONS OF THE ASSESSEE, TO THE FOLLOWING EFFEC T : 5. I HAVE CONSIDERED THE GROUNDS OF APPEAL, STATEME NT OF FACTS AND WRITTEN SUBMISSIONS FILED BY THE APPELLANT. THE APPELLANT HAS SUBMITTED LETTERS FOR CONDONATION OF DELAY IN F ILING OF APPEAL BY 407 DAYS CITING THE REASONS THAT APPELLANT WAS ALTHOUGH AWARE OF THE CASE AND THE APPEAL WAS OUGHT TO HAVE BEEN FILED BY 23RD APRIL, 2013 BUT THE CHARTERED ACCOUNTANT FI RM FAILED TO ADVICE THE APPELLANT FOR FILING OF APPEAL DUE TO THEIR PROFESSIONAL PRE-OCCUPATION. IT IS ALSO A MATTER OF FACTS THAT THE ASSESSMENT PROCEEDING FOR SUBSEQUENT A.Y. 2011- 12 ALSO COMMENCED BY ISSUANCE OF NOTICE BY AO ON 10.12.2013 . IT WAS FURTHER SUBMITTED BY THE APPELLANT THAT AFTER T HE PROCEEDINGS INITIATED THAT THE SUBSEQUENT ASSESSMEN T YEAR, THE PROFESSIONAL FIRM, WHO HAD DEALING THE CASE ON BEHALF OF THE APPELLANT AS AUTHORISED REPRESENTATIVE, ADVICE THEM TO FILE THE APPEAL BY SEEKING CONDONATION OF DELAY IN FILIN G OF APPEAL. THE APPELLANT RELIED ON VARIOUS DECISIONS O F COURTS IN SUPPORT OF ITS ARGUMENT THAT IN CASE OF SIMILAR CIR CUMSTANCES THE DELAY MAY BE CONDONED. ( EMPHASIS SUPPLIED BY US ) THEREAFTER AS MENTIONED HEREIN ABOVE, THE CIT (A) H AS DEALT WITH THE EXPLANATION IN PARA 5.7 OF HIS ORDER THEREAFTER THE APPEAL WAS ITA.1046/BANG/2016 PAGE - 9 DISMISSED BY HIM . FROM A PERUSAL OF THE EXPLANATI ON GIVEN IN PARA 5 (SUPRA), FOLLOWING SITUATION EMERGES : I) THE ASSESSEE WAS AWARE OF FILING OF THE RETURN O F INCOME AS ALSO THE TIME LIMIT FOR FILING THE APPEAL ; AND II) THE ASSESSMENT ORDER WAS PASSED ON 18.03.2013 FOR AY 2010-11, AND III) THE APPEAL WAS REQUIRED TO BE FILED ON 23.04. 2013. THUS THE ASSESSEE WAS AWARE OF NOT ONLY OF PASSING OF THE ASSESSMENT ORDER BUT ALSO OF ITS RIGHT TO FILE THE APPEAL BEFORE THE CIT (A) UP TO 23.04.2013. 06. THE APPEAL BEFORE CIT(A) WAS FILED ON 15.04.201 4 AND THE REASON FOR THE DELAY IN FILING THE APPEAL WAS THAT THE ASSESSEE HAD ENGAGED A DIFFERENT PROFESSIONAL, AS THE EARLIER PR OFESSIONAL WAS PRE OCCUPIED WITH THE PROFESSIONAL WORK. 07. IN THE ASSESSMENT ORDER, THE ASSESSEE WAS REPRE SENTED BY THE COUNSEL, NAMELY VINAY SIMHA, AND IN THE APPELLATE P ROCEEDINGS THE SAME VINAY SIMHA HAD ONLY REPRESENTED THE ASSESSEE . THEREFORE, THE EXPLANATION OF THE ASSESSEE THAT IT HAD ENGAGED A DIFFERENT PROFESSIONAL TO FILE THE APPEAL, IN OUR VIEW, IS NO T ONLY INCONGRUOUS BUT ALSO INCORRECT. ONCE THE SAME AR HAD REPRESENT ED THE ASSESSEE BEFORE THE AO AS WELL AS BEFORE THE CIT (A), EXPLAN ATION OF THE ASSESSEE CANNOT BE ACCEPTED AND HENCE IS REQUIRED TO BE REJECTED. MOREOVER THE ASSESSEE WAS ALSO REQUIRED TO FILE AN AFFIDAVIT OF THE ITA.1046/BANG/2016 PAGE - 10 PROFESSIONALS WHO HANDLED THE MATTER EARLIER OR SUB SEQUENT, STATING THE STEPS TAKEN BY THE ASSESSEE IN FILLING THE APPE AL AND ALSO FOR THE COMPLAINT MADE, IF ANY, AGAINST THE PROFESSIONAL FOR DERELICTION IN NOT FILING THE APPEAL IN TIME BEFORE THE STATUTORY AUTHORITY. 08. IN OUR VIEW, THE LAW IS CLEAR THAT LIBERAL ATTI TUDE IN CONDONING THE DELAY SHOULD NOT BE ENCOURAGED, RATHER DISCRETI ON SHOULD BE EXERCISED BY THE BENCH IN A JUST AND FAIR MANNER. A COMPANY WHICH IS HAVING SIGNIFICANT PRESENCE THROUGHOUT KARNATAKA AND IS CONSCIOUS OF ITS RIGHTS AND OBLIGATIONS UNDER THE A CT, IF CHOOSES TO REMAIN INDIFFERENT IN FILING THE APPEAL, THAN SUCH AN ASSESSEE IT CANNOT BE PERMITTED TO SEEK CONDONATION OF THE DELA Y IN THE GARB OF LEVELLING ALLEGATION AGAINST THE PROFESSIONALS WITH OUT ANY BASIS . THE COORDINATE BENCH IN IDENTICAL FACTS, IN THE MAT TER OF JYOTHI CHEMICALS V. DCIT IN PARA 13 HAS HELD AS UNDER : 13.IN THE LIGHT OF THE ABOVE LEGAL PROPOSITIONS, IF WE EXAMINE THE FACTS OF THE CASE, WE FIND THAT ORDER OF THE CIT(A) DATED 26-3-1999 WAS DULY SERVED UPON THE ASSESSEE AND THE ASSESSEE PURSUED ITS CASE BEFORE THE ASSESSING OFFICER IN RE-ASSESSMENT PROCEEDINGS STARTED CONSEQUENT TO THE ORDER OF THE CIT(A) ON SE T ASIDE ISSUES THROUGH A TAX CONSULTANT. MEANING THEREBY, THE ASSE SSEE WAS AWARE ABOUT HIS RIGHTS OF FILING OF AN APPEAL BEFOR E THE TRIBUNAL ON THOSE ISSUES WHICH WERE DECIDED AGAINST HIM, BUT , HE DID NOT AVAIL THE OPPORTUNITY TO CHALLENGE THE ORDER OF THE CIT(A) BY FILING AN APPEAL BEFORE THE TRIBUNAL AND OPTED TO PURSUE T HE MATTER BEFORE THE ASSESSING OFFICER IN SET ASIDE PROCEEDIN GS ON THE ISSUES WHICH WERE SET ASIDE BY THE CIT(A). THOUGH THE ASSE SSEE HAS CONTENDED THAT HE WAS INVOLVED IN LITIGATION SINCE 1996 AND THE LITIGATIONS WAS OVER IN 2004, BUT, EVEN AFTER, 2004 , THE ASSESSEE DID NOT PREFER ANY APPEAL BEFORE THE TRIBUNAL AGAINST T HE ORDER OF THE CIT(A). THE ASSESSEE HAS TAKEN A PLEA THAT HE WAS N OT WELL DURING THE ENTIRE PERIOD, BUT, HE DID NOT FILE EVEN A SING LE DOCUMENT IN SUPPORT OF HIS CONTENTION. HE HAS ALSO TAKEN A PLEA THAT THAT HIS ITA.1046/BANG/2016 PAGE - 11 TAX CONSULTANT WAS EXPIRED IN 2002 AND THAT IS WHY HE COULD NOT TAKE A PROPER STEP. BUT, HE DID NOT EXPLAIN THE CIR CUMSTANCES WHICH PREVENTED HIM FROM ENGAGING A NEW TAX CONSULT ANT OR TO SEEK A LEGAL ADVISE FOR FILING AN APPEAL BEFORE THE TRIBUNAL. IN PARA 11 OF THE AFFIDAVIT, HE TOOK A NEW STAND THAT ONE DOCTOR RUPAREL CAME TO HIS RESCUE AND WITH HIS HELP HE COU LD COLLECT SOME PAPERS AND ENGAGED TAX CONSULTANT AND FILED AP PEAL. BUT, IT IS QUITE SURPRISE TO NOTE, HOW A DOCTOR CAN HELP TH E ASSESSEE TO GET OUT OF THE TAX LITIGATIONS. MOREOVER, NOTHING IS PL ACED ON RECORD ABOUT THE MEDICAL TREATMENT TAKEN BY THE ASSESSEE F ROM THE SAID DOCTOR OR OTHER DOCTORS. NO DOUBT, IT HAS BEEN REPE ATEDLY HELD BY THE APEX COURT AND VARIOUS HIGH COURTS THAT WHILE C ONDONING THE DELAY, THE TRIBUNAL SHOULD ADOPT LIBERAL APPROACH A ND TO TAKE A PRAGMATIC VIEW, BUT, WHILE EXERCISING THE DISCRETIO N FOR CONDONING THE DELAY, ONE SHOULD NOT FORGET THAT THE LIBERAL A PPROACH ADOPTED BY THE TRIBUNAL, SHOULD NOT GIVE A WRONG MESSAGE, S O THAT, THE LITIGATIONS WOULD TAKE IT OTHERWISE AND WOULD NOT T AKE CARE AND DUE DILIGENCE IN FILING AN APPEAL WITHIN THE PERIOD OF LIMITATION. HAD IT BEEN A CASE OF A DELAY OF FEW DAYS, ONE CAN ACCEPT THE EXPLANATION OF THE ASSESSEE THAT ASSESSEE COULD NOT DEVOTE HIS TIME AS HE WAS BUSY IN SOME OTHER AFFAIRS, BUT, IT CANNO T BE ACCEPTED OR APPRECIATED THAT DURING THE PERIOD OF 7 YEARS AND 6 MONTHS, ASSESSEE COULD NOT TAKE A DECISION FOR FILING AN AP PEAL BEFORE THE TRIBUNAL THOUGH HE WAS AWARE OF THE FACT THAT CIT(A ) HAS PASSED AN ORDER ON CERTAIN ISSUES AGAINST HIM. WE, THEREFO RE, OF THE VIEW THAT THIS PRESENT CASE IS NOT A FIT CASE WHERE THE DELAY 7 YEARS 6 MONTHS CAN BE CONDONED AS SUFFICIENT CAUSE IS NOT B ROUGHT ON RECORD BY THE ASSESSEE. WE, THEREFORE, REJECT THE R EQUEST FOR CONDONATION OF DELAY IN FILING OF THE APPEAL. SINCE THE DELAY IN FILING OF THE APPEAL IS NOT CONDONED, WE DISMISS TH E APPEALS BEING NOT ADMITTED AS BARRED BY LIMITATION. ALSO THE HONBLE JURISDICTIONAL HIGH COURT IN THE M ATTER OF SPPORTHI SADAN CONVENT (SUPRA) IN PARA 9, HAS HELD AS UNDER : 9. IGNORANCE OF LAW IS NO EXCUSE. WE MAY USEFULLY REF ER TO THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF THE SWADESHI COTTON MILLS CO. LTD. V. GOVERNMENT OF U.P. [1975] 4 SCC 378, WHEREIN IT IS HELD AS FOLLOWS: '...BUT WE ARE IN AGREEMENT WITH THE HIGH COURT ON THE OTHER TWO GROUNDS. AS MENTIONED EARLIER, THE IMPUGNED ASSESSM ENTS WERE MADE IN 1949. THE WRIT PETITION WAS FILED IN 1956. THE EXPLANATION ITA.1046/BANG/2016 PAGE - 12 GIVEN BY THE PETITIONER FOR THIS LONG DELAY IS THAT HE DID NOT KNOW THE CORRECT LEGAL POSITION AND HE CAME TO KNOW ABOUT TH E SAME AFTER THE DECISION OF THE ALLAHABAD HIGH COURT IN THE COMMISSIONER OF SALES TAX, U.P. V. MODI FOOD PRODUCTS LTD. EVERY INDIVIDUAL IS DEEMED TO KNOW THE LAW OF THE LAND. THE COURTS MERELY INTERPR ET THE LAW AND DO NOT MAKE LAW. IGNORANCE OF LAW IS NOT AN EXCUSE FOR NOT TAKING APPROPRIATE STEPS WITHIN LIMITATION. THEREFORE THE ARGUMENT THAT THE APPELLANT DID NOT KNOW THE TRUE LEGAL POSITION IS N OT ONE THAT CAN BE ACCEPTED IN LAW. '. 09. IN VIEW OF THE ABOVE AND IN VIEW OF THE FACTS O F THE PRESENT CASE, WHERE THE ASSESSEE WAS REPRESENTED BY THE SAM E AR BEFORE THE AO AS WELL AS BEFORE THE CIT (A) AND WAS AWARE OF I TS RIGHTS TO FILE THE STATUTORY APPEAL WITHIN THE STATUTORY PERIOD OF 30 DAYS, CHOOSES TO FILE THE APPEAL AFTER A DELAY 407 DAYS, WE DO NO T FIND ANY JUSTIFICATION IN ALLOWING THE APPEAL OF THE ASSESSE E. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF AUGUST, 2018. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBE R BENGALURU DATED : 29.08.2018 MCN* ITA.1046/BANG/2016 PAGE - 13 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.