ITO, Ward - 44(2), Kolkata, Kolkata V. Mohal Chand Motilal Kothari & Co., Kolkata

ITA 1768/KOL/2006

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7840 (ITAT-KOLKATA)
• Duration Of Justice: 7 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 18-05-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 23-10-2006
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN LD
• Assessee Lawyers: S N SURANA LD
• Keywords: Period of limitation; Reasonable cause; Assessment record; Right to appeal; Time period of passing order; Condonation of delay; Ignorance of law
• Section: 260A; 154

Judgement Text

ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 1 , B IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH: KO LKATA ( ) , 1 , BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SRI GEORGE MATHAN, JM $ / ITA NOS. 1768 & 1769/KOL/2006 A.Y 1997-98 I.T.O WARD 44(2), KOLKATA - - - VERSUS - . M/S. MOHAL CHAND MOTILAL KOTHARI & CO. ( % / APPELLANT ) ( &'% / RESPONDENT ) CO NOS. 102 & 103/KOL/2006 ITA NOS. $ / ITA NOS. 1768 & 1769/KOL/2006 A.Y 1997-98 M/S. MOHAL CHAND MOTILAL KOTHARI & CO. - - - VERSUS - . I.T.O WARD 44(2), KOLKATA ( % / APPELLANT ) ( &'% / RESPONDENT ) FOR THE APPELLANT/DEPARTMENT /SHRI RAVI JAIN. LD. CIT/DR FOR THE RESPONDENT/ASSESSEE: / SHRI S. N SURANA, ADVOCATE, LD.AR * + /DATE OF HEARING: 15-09-2014 * + /DATE OF PRONOUNCEMENT: 15-09-2014 / ORDER PER BENCH THESE APPEALS BY THE REVENUE AND THE CROSS OBJECTI ONS BY THE ASSESSEE ARE ARISING OUT OF THE SEPARATE ORDERS OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)-XXVI, KOLKATA DATED 18.06.2002/09.7.2002 PERTAINING TO ASSESSMENT YEAR 1997-98. 2. AT THE OUTSET, WE NOTE THAT THERE IS A DELAY OF 1488 DAYS IN FILING THE APPEALS IN ITA NO.1768/KOL/2006 AND 1477 DAYS IN ITA NO.1769/KOL/ 2006 BY THE REVENUE. NO FORMAL AFFIDAVIT AVERRING REASONABLE CAUSE FOR THE DELAY AND CONDONATION THEREOF HAD BEEN FILED. HOWEVER, SHRI RAVI JAIN. LD. CIT/DR APPEARING ON BE HALF OF THE REVENUE HAS POINTED OUT THAT THERE IS A NOTE FOR THE CONDONATION IN THIS REGARD AVAILABLE IN THE APPEAL FILE. THE SAID LETTER SEEKING CONDONATION READS AS UNDER:- ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 2 IN THE ABOVE REFERRED CASE, THE HONBLE ITAT, B BENCH, KOLKATA PASSED ORDER VIDE ITA NOS. 1851 & 1852(KOL) OF 2002 ON 18. 07.2005 IN THE CASE OF ACIT, CIRCLE-39, KOLKATA VS.MOHALCHAND MOTILAL KOTH ARI & CO. KOLKATA, WHICH WAS RECEIVED BY THE CIT-XIII, KOLKATA 22.08.2 006. THE SECOND APPEAL WAS FILED BY THE ACIT-39, KOLKATA ON 09.09.2002 AGA INST THE APPEAL ORDERS OF THE CIT(A)-XXVI, KOLKATA IN APPEAL ORDER NOS. 0769/ CIT(A)-XXVI/01- 02/DATED 18.06.2002 AND NO.0769/CIT(A)-XXVI/02-03/D ATED 09/07/2002. THE HONBLE ITAT, B BENCH, KOLKATA DISMISSED THE APPEAL FILED BY THE REVENUE ON THE GROUND THAT THE ACIT, CIRCLE-39, KOL KATA HAD NO JURISDICTION OVER THE CASE AND THE APPEAL WAS INVALID AB INITIO BECAUSE, AS PER CBDT NOTIFICATION DATED 30.07.2002, THE JURISDICTION OF THE CASE WAS TO BE TRANSFERRED TO ITO, WARD-44(2), KOLKATA AND THE SECOND APPEAL W AS FILED BY THE ACIT-39, KOLKATA AFTER THE DATE OF ISSUANCE OF THE ABOVE M ENTIONED NOTIFICATION OF THE CBDT. THE ASSESSMENT RECORDS WERE HOWEVER, PHYSICA LLY TRANSFERRED TO ITO, WARD -44(2), KOLKATA ONLY ON 27.09.2002. THE HONBL E ITAT WHILE DISMISSING THE CASE RELIED ON THE JUDGMENT OF THE HONBLE JURI SDICTIONAL HIGH COURT IN THE CASE OF WEST BENGAL ELECTRICITY BOARD VS. DCIT [278 ITR 218 (CAL)]. IN THIS REGARD, IT IS TO MENTION THAT AS THE ASSES SMENT RECORDS HAD NOT PHYSICALLY TRANSFERRED AND THE ITO, WARD-44(2), KOL KATA WAS NOT IN THE POSSESSION OF THE SAME, AND HENCE WAS NOT AWARE TH AT THE JURISDICTION IN THIS PARTICULAR CASE WAS ACTUALLY WITH HIM. IT MAY BE M ENTIONED HERE THAT AT THAT TIME, IN PURSUANCE OF THE CBDTS NOTIFICATION, LARG E NUMBER OF ASSESSMENT RECORDS WERE IN THE PROCESS OF BEING TRANSFERRED. FURTHER, AS NOTED AT PARA 2 OF THE ORDER OF THE HONBLE ITAT, THE CIT-XV, KOLKATA DURING THE COURSE OF HEARING HAD STATED THAT ORDINARILY THE TRANSFER OF JURISDICTION TAKES DEFECT FROM THE DATE WHEN THE FILE WAS RECEIVED BY THE TR ANSFEREE AO, AND THAT THE FILING OF THE SECOND APPEAL BY THE ACIT-39, KOLKATA WAS A SIMPLE IRREGULARITY AND THE AUTHORITIES HAVING JURISDICTION SHOULD BE G IVEN AN OPPORTUNITY TO FILE THE APPEAL AFRESH. ON THIS ISSUE AT PARA 2.1 OF THE O RDER OF THE HONBLE ITAT IT HAS BEEN STATED THAT THE LEARNED COUNSEL SUBMITTED I T WILL BE FOR THE DEPARTMENT TO CONSIDER FILING OF THE FRESH APPEAL AND SUCH FRE SH APPEAL WILL BE CONSIDERED BY THE TRIBUNAL IN ACCORDANCE WITH LAW WHEN IT CO MES UP FOR HEARING. AS IS EVIDENT FROM THE FACTS OF THE CASE, THE AO HAVING JURISDICTION OVER THE CASE [ ITO, WARD-44(2) ] COULD NOT FILE SECOND APPEAL BEF ORE THE HONBLE ITAT WITHIN THE DUE TIME FOR REASONS BEYOND HIS CONTROL. HENCE, UNDER THE CIRCUMSTANCES, THE UNDERSIGNED PR AYS LEAVE TO FILE A FRESH APPEAL BEFORE THE HONBLE ITAT. IN VIEW OF THIS, TH E DELAY IN FILING SECOND APPEAL MAY KINDLY BE CONDONED AND THE EARLIER ORDER DATED 28.07.2002 IN ITA NOS.1851 & 1852 MAY KINDLY BE RECALLED AND THE FRES H APPEAL BE ADMITTED AND DECIDED ON MERITS. ENCLOSED PLEASE FIND COPY OF TH E ORDER OF THE HONBLE ITAT IN ITA NOS. 1851/1852(KOL) OF 2002 DATED 28.07.2006 . ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 3 3. WE HAVE HEARD BOTH THE LD. COUNSEL ON THIS ISSU E. AS EMANATING FROM THE AFORESAID SUBMISSIONS OF THE REVENUE, IT IS NOTICED THAT THE REVENUES APPEALS IN THIS REGARD WERE EARLIER DISMISSED BY THE TRIBUNAL ON THE COUNT THAT THE APP EAL WAS INVALID AB INITIO IN AS MUCH AS THE LD. ACIT, CIR-30, KOLKATA HAD NO JURISDICTION FOR FILIN G THE APPEAL. HENCE, WE NOTE THAT ONCE THE REVENUES APPEALS WERE DISMISSED BY THE TRIBUNAL ON THE COUNT THAT PERSON CONCERNED, WHO FILED THE APPEAL, HAD NO JURISDICTION OVER THE CASE. NOW , WE NOTE THAT FRESH APPEAL HAS BEEN FILED AFTER THE DELAY OF ALMOST OVER 4 YEARS. NOW WE HAV E TO EXAMINE WHETHER THERE IS ACTUALLY REASONABLE CAUSE OR NOT FOR THE DELAY. WE NOTE THAT EARLIER THE TRIBUNAL VIDE ORDER DATED 28.07.06 HAD DISMISSED THE APPEALS OF THE REVENUE I N LIMINE ON THE COUNT OF LACK OF PROPER JURISDICTION AFTER CONSIDERING ALL THE ASPECTS AND THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. THE SUBMISSION OF THE LD. COUNSEL OF THE ASSESSEE NOTED IN THE ORDER ALSO INCLUDE THE FOLLOWING:- . 2.1 ON THE ABOVE FACTS, THE LEARNED COUNSEL FURT HER SUBMITTED THAT THE CIT-XIII HAS ADMITTED THAT THE AO FILING THE APPEAL HAD NO JURISDICTION TO FILE THE APPEAL BEFORE THE TRIBUNAL ON THE DATE WHEN THE APPEAL IS ACTUALLY FILED. HE FURTHER SUBMITTED THAT IT WILL BE FOR THE DEPARTMEN T TO CONSIDER FILING OF THE FRESH APPEAL AND SUCH FRESH APPEAL WILL BE CONSIDERED B Y THE TRIBUNAL IN ACCORDANCE WITH LAW WHEN IT COMES UP FOR HEARING AND THE DEPARTMENT AT THIS MOMENT CANNOT BE ALLOWED TO TREAT THIS INFIRMITY AS A PROCEDURAL INFIRMITY. SEC. 292 IS NOT APPLICABLE TO CURE FUNDAMENTAL INFIRMIT IES AND SUCH INFIRMITIES ARE NOT CURABLE U/S. 292B. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS:- SISIR KUMAR VS. CIT [ 170 ITR 80 (KER) AT PG. 82], PEERULAL MOHANLAL [257 ITR 198 (RAJ.)] SUN ROLLING MILLS P.LTD VS. ITO [160 ITR 412 (CAL) ] DADHI SAHU [199 ITR 610(SC)] DEEPCHAND KOTHARI VS. CIT [17 ITR 381 (RAJ.)] KIRAN SINGH CS. CHAMAN PASWAN (AIR 1954 (SC) 340] P.V DOSHI VS. CIT [113 ITR 22 (GUJ.)] CIT VS. SANTOSH RAM [219 ITR 301 (MAD)] ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 4 THE LEARNED COUNSEL ALSO RELIED ON THE JURISDICTI ONAL HIGH COURT DECISION IN THE CASE OF CIT VS. M/S. S.SARKAR & CO., REPORTE D IN AIR 1954 PAGE 613 STATING THAT THE FACTS OF THIS CASE ARE EXACTLY SI MILAR TO THE SAID CASE BEFORE THE HONBLE CALCUTTA HIGH COURT. HE, THEREFORE, SUBMITT ED THAT IN VIEW OF THE LEGAL POSITION, THE APPEAL OF THE DEPARTMENT IS INCOMPET ENT AND SHOULD BE DISMISSED AS SUCH. 3.1 FROM THE ABOVE, IT IS APPARENT THAT THE TRIBUN AL HAS CONSIDERED ALL THE ASPECTS AS AVAILABLE IN THE CASE AND DISMISSED THE REVENUES A PPEAL ON THE COUNT OF LACK OF PROPER JURISDICTION. BY NO STRETCH OF IMAGINATION, IT CAN BE SAID THAT THESE APPEALS FILED BEFORE US ARE IN PURSUANCE TO THE ITAT ORDER. IN THIS REGARD, W E NOTE THAT THE LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE APPEAL WAS TAKEN UP FOR HEAR ING BY THE HONBLE ITAT AND THE RESPONDENT TOOK THE OBJECTION WITH REGARD TO THE A DMISSIBILITY OF THE APPEAL IN THE FIRST INSTANCE ITSELF. THE PLEA OF THE LD. COUNSEL OF THE ASSESSE E IS THAT THE RESPECTIVE COMMISSIONERS WERE AWARE OF THE AO NOT HAVING PROPER JURISDICTION. IN THIS REGARD THE LD. COUNSEL OF THE ASSESSEE HAS FURTHER REFERRED TO THE EXPLANATION OF THE LD.C IT, KOLKATA-XIII DATED 5-11-2004, IN WHICH IS STATED THAT MOREOVER IN VIEW OF THE SPIRIT OF OF SECTION 292B OF I.T ACT, 1961 APPEAL FILED BY THE ACIT, CIR-39 SHOULD BE TREATED AS VALID ONE EV EN IF THE JURISDICTION OVER THE CASE AS PER CBDTS INSTRUCTION DATED 30-7-2002 TO BE VESTED ON ITO WARD 44(2), KOLKATA ON THE DATE OF FILING OF APPEAL. 3.2 FROM THE ABOVE, IT IS CLEAR THAT ARGUMENTS REGA RDING APPLICABILITY OF SECTION 292B WAS ALREADY ADVANCED BEFORE THE ITAT AND AFTER CONSIDE RING ALL THE ASPECTS, THE TRIBUNAL HAD DISMISSED THE REVENUES APPEAL ON THE COUNT OF LAC K OF JURISDICTION IN FILING THE APPEAL. IN THIS REGARD, FOLLOWING SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE ARE REPRODUCED HEREUNDER:- WHEN THE DEPARTMENT WAS AWARE AT THA T PARTICULAR TIME IN 2004 OR AT LEST ON 17.01.2005 SEEKING PERMISSION TO FILE APPEAL AFR ESH, IT COULD HAVE COME FORWARD WITH A PETITION FOR RECTIFICATION OR COULD HAVE FIL ED A FRESH APPEAL IMMEDIATELY ON BECOMING AWARE OF THE ABOVE ILLEGALITY EVEN THOUGH THEY DID NOT ACT WHEN THE ORDER OF THE CIT(A) WAS SERVED ON THE PROPER CIT, I.E CIT-X V ON 27.9.2002. FURTHER EVEN AFTER FILING OF THE PRELIMINARY OBJECTION BY THE RE SPONDENT IN 2004, WHICH WAS HEAD AT LENGTH AND WRITTEN OBJECTIONS WERE INVITED BY THE H ONBLE ITAT WHICH WAS DULY FILED BY THE RESPONDENT ON 27.4.2005 (COPY IN THE PAPER BOOK) AS TO WHY APPEAL FILED BY THE STRANGER WAS VOID AND CANNOT BE ADMITTED, THE D EPARTMENT DID NOT TO PROCEED FURTHER TO MAKE GOOD THE ILLEGALITY ALREADY DONE IN FILING OF THE APPEAL. ON THE OTHER ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 5 HAND EXPLANATION WAS AGAIN FILED BY THE CIT HAVING JURISDICTION ON 19.9.2005 (COPY IN THE PAPER BOOK) INSTEAD OF TAKING PROPER CARE WI TH DUE DILIGENCE BY FILING ANOTHER APPEAL OR BY FILING PETITION FOR FILING A FRESH APP EAL. FURTHER IT WAS ALSO WITHIN THE KNOWLEDGE OF THE AO CIR. 39, KOL ALSO THAT HE DID NOT HAVE THE JURISDICTION WHICH WILL BE EVID ENT FROM THE TRANSFER MEMO WHEREIN IT WAS CLEARLY MENTIONED THAT THE PENALTY P ROCEEDINGS U/S. 271B WERE GETTING BARRED BY LIMITATION ON 30 TH SEPT 2002 AND THEREFORE THE ASSESSMENT RECORDS WER E IMMEDIATELY HANDED OVER TO THE AO WARD 44(2), KOL ON 27.9.2002 SO THAT THE AO HAVING PROPER JURISDICTION CAN COMPLETE THE PROCEE DINGS WITHIN TIME. THIS IS EVIDENT FROM THE PAPER BOOK PAGE 27 AND 28. THE SAME IS AL SO CLEAR FROM THE CITS EXPLANATION DATED 19.9.2005 AS WELL THE ASSESSEES LETTER DATED 30.9.2002 REFERRED TO ABOVE. THIS IN FACT PROVES THAT THE QUESTION OF JURISDICTION WAS RAISED AS BACK AS IN SEPTEMBER 2002 ITSELF AND THE DEPARTMENT WAS AWARE IN SEPTEMBER 2002 ITSELF THAT ONLY THE AO WARD 44(2) WAS HAVING PROPER JURISDICTI ON BUT NOTHING WAS DONE TO CORRECT THE ILLEGALITY OF FILING OF APPEALS BY ACI T CIRCLE-39. THEREFORE, IT IS CLEAR THAT THE CIT-XV DID NOT DIRE CT THE AO IMMEDIATELY AFTER 27.9.2002 TO FILE THE APPEAL OR CALL FOR THE REPORT BUT KEPT MUM. THIS SHOWS HIS INACTION ON THE ORDER AND NOT A MISTAKE. FURTHER WH EN IN 2004 ITSELF, THE LD.CIT-XV WAS SATISFIED THAT IT WAS A MISTAKE THEN WHO PREVEN TED HIM TO RECTIFY OR FILE A FRESH APPEAL. NO PERMISSION IS REQUIRED FROM THE ITAT FO R FILING ANY FRESH APPEAL IF IT WAS NOTICED THAT THE EARLIER APPEAL WAS WITHOUT JURIS DICTION NOR ANY PERMISSION WAS GIVEN OR COULD HAVE BEEN GIVEN BY THE ITAT FOR FILI NG SUCH APPEALS A FRESH. IT WAS FOR THE DEPARTMENT TO ACT WITH DUE DILIGENCE IN TIME. E VEN NO PETITION WAS FILED AT THAT TIME TO TREAT THE SAID EARLIER APPEALS AS WITHDRAWN AFTER FILING A FRESH APPEAL. ALL THESE ACTIONS AND INACTIONS OF THE DEPARTMENT W ILL SHOW THAT THE DEPARTMENT NEVER ACTED WITH DUE DILIGENCE TO MAKE G OOD THE ILLEGALITY ALREADY OCCURRED THOUGH IT HAS FULLY MANNED JUDICIAL DEPART MENT WITH CONSULTANTS AND COUNSELS. (IT HAS BEEN HELD IN 110 ITR PAGE 217 THA T IN THE CASE THE ASSESSEES INCOME HAS ESCAPED ASSESSMENT BUT THERE IS NO REASO N WHY INDULGENCE SHOULD BE SHOWN TO THE DEPARTMENT WHO ARE EXPECTED TO BE CONV ERSANT WITH ALL THE PROVISIONS OF IT LAW). WHEN THE ORDER OF THE CIT(A) WAS SERVED ON CIT(XV) ON 27.9.2002 OR THE FILE WAS PHYSICALLY TRANSFERRED ON 27.9.2002 THE SA ID OFFICERS HAVING JURISDICTION MAY HAVE THOUGHT NOT TO FILE ANY APPEAL. IF THEY THOU GHT TO FILE THE APPEAL DID THEY MAKE ANY ENQUIRY FORM THE EARLIER AO ABOUT FILING OF THE APPEAL IN THIS CASE. IT WAS EVIDENT FROM THE RECORDS ON 27.9.2002 ITSELF WHEN T HE ASSESSEE RAISED THE QUESTION OF JURISDICTION AND WHEN THE APPEALS WERE DULY FILED BY THE ACIT CIR 39 ON WHICH DATE THE SAID AO HAD NO JURISDICTION. MOREOVER THE AO CANNOT TAKE THE PLEA NOW THAT IT WAS BEYOND HIS CONTROL SINCE AT LEAST IN SEPT. 2002, WHEN THE ORDER OF CIT(A) WAS SERVED ON CIT-XV, THE ASSESSMENT RECORDS WERE ALSO TRANSFERRED TO HIM BUT THE SAID CIT-XV KEPT MUM AND THEREAFTER ON THE DATE ON WHIC H THE AO AND THE COMMISSIONER OF INCOME-TAX-XV HAD FILED THEIR EXPLA NATIONS IN 2004 AND 2005 REFERRED TO ABOVE WHEN THEY UNDOUBTEDLY CAME TO KN OW THAT THE APPEALS EARLIER FILED ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 6 WERE NOT LEGAL. THE COMMISSIONER OF INCOME-TAX-XV WAS ALSO AWARE OF THESE FACTS SINCE FOR THE SAME YEAR HE HAD DISPOSED OFF A PETI TION ON 21.11.2002 WHERE HE HAD QUOTED ON PERUSAL OF THE CASE RECORDS, WHICH SH OWS THAT HE HAD THE OCCASION TO LOOK INTO THE CASE RECORDS. NOT ONLY THAT WHEN THE ORDER OF THE LD.CIT(A) WAS SERVED ON THE LD. CIT-XV AS BACK AS ON 27.9.2002 NO ACTION WAS TAKEN BY THE SAID CIT(A)- XX AND EVEN NO ENQUIRY WAS MADE AS THE FILING OF THE APPEAL FROM THE ASSESSING OFFICER CONCERNED. THE DEPARTMENT HAS TO BE MORE VIGILANT AND CAREFUL IN FILING OF THE APPEAL AS HAS BEEN HELD IN THE CASE OF CIT VS. A TOSH & SONS (COPY OF THE JUDGEMENT ENCLOSED). IT HAS TO BE PROVED BY THE P ERSON SEEKING CONDONATION THAT HE ACTED WITH DUE CARE AND DILIGENCE 105 TTJ PAGE 705 (TRACTOR AND FARM EQUIPMENTS). THERE HAS TO BE EXERCISE OF DUE CARE AND DILIGENCE AND THE PLAINTIFF HAS TO SHOW THAT THE PREVIOUS SUIT WAS PROSECUTED W ITH GOOD FAITH AND A PLAINTIFF CANNOT CLAIM THAT THE PREVIOUS SUIT WAS PROSECUTE D WITH GOOD FAITH SINCE IN THE WRITTEN STATEMENT ITSELF IT WAS SPECIFICALLY SAID T HAT THE SUIT WAS BAD FOR NON JOINDER OF NECESSARY PARTIES. (2002-089) AIR 2768 SC COPY E NCLOSED. THE FACTS OF THE PRESENT CASE ARE SAME. IN RAMPRASAD DAGDURAM (1967 54 AIR 278 THE HONBLE SUPREME COURT HELD THAT CONSIDERING THE BAR OF LIMI TATION THE ADDED PARTIES ARE NOT ENTITLED TO OBTAIN ANY RELIEF BECAUSE OF BAR OF L IMITATION. (COPY ENCLOSED). IT IS FURTHER SUBMITTED THAT THE ITAT HAS ALREADY H ELD THAT THE APPEAL FILED BY THE REVENUE CANNOT BE ENTERTAINED BEING INVALID. T HE TIME CONSUMED IN PROSECUTING AN INVALID APPEAL CANNOT BE A GROUND FOR CONDONING THE DELAY. A SUIT FILED BY A STRANGER WHEN LOST CANNOT BUY TIME FOR THE ACTUAL P LAINTIFF. ON A SIMILAR ISSUE THE HONBLE HIGH COURT WHILE DECIDING THE ISSUE ON COND ONATION OF DELAY IN THE CASE OF IN THE CASE OF KAVUNNY CHAKKLAR REPORTED IN AIR 197 5 (KER) 182 HAS HELD EVEN LIBERAL INTERPRETATION WOULD NOT PERMIT THE ACCEPT ANCE OF CONTENTION THAT AN INCOMPETENT PLAINTIFF SUIT CAN BE INVOKED BY ANOTHE R PLAINTIFF TO CLAIM EXCLUSION OF TIME. A COPY OF THE JUDGEMENT IS ENCLOSED HEREWITH. IF A PERSON HAS NO CAUSE OF ACTION AND FILES THE SUIT ANOTHER PLAINTIFF CANNOT CLAIM EXCLUSION OF TIME, A COPY OF THE SAID JUDGEMENT IS ENCLOSED HEREWITH. . IN ANOTHER JUDGEMENT IN THE CASE OF INDIA ELECTR IC WORKS LIMITED REPORTED IN AIR 1971 SC 2313 IT HAS BEEN HELD THAT THE SECTI ON (ON LIMITATION) MUST BE CONSTRUED LIBERALLY THERE IS NO WARRANT TO EXTEND T HE SECTION TO ONE PLAINTIFF WHO SEEKS TO HARNESS THE BENEFIT OF A SUIT BY ANOTHER P LAINTIFF. IN THAT CASE THE PERSON WHO WAS NOT ACTUAL POSSESSION OF THE PROPERTY FILED A S UIT AND NOT THE OWNER AND THEREAFTER THE OWNER CAME FORWARD TO FILE THE SUIT. THIS JUDGEMENT HAVE BEEN REFERRED TO IN THE CASE OR KAVUNNY CHAKKLAR MENTIONED ABOVE. IN ANOTHER CASE REPORTED IN AIR 1972 PAGE 730 (RA BINDRANATH SAMUEL DAWSAN) THE HONBLE SUPREME COURT HELD AS UNDER:- (A+B) A PERSON WHO HAS RESISTED TO THE OBJECTIO N REGARDING NON JOINDER OF PARTIES AT THE INITIAL STAGE AND ALSO AT THE REV ISIONAL STAGE AND RUN THE RISK OF PROCEEDING WITH THE SUIT WITHOUT IMPLEADING THE N ECESSARY PARTIES, CANNOT BE SAID TO ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 7 ACT IN GOOD FAITH BECAUSE HE CANNOT BE SAID TO HAVE ACTED WITH DUE CARE AND ATTENTION. CONSEQUENTLY, SUCH PERSON WILL NOT BE EN TITLED TO BENEFIT TO SECTION 14 OF THE ACT FOR EXCLUDING THE TIME SPENT BY HIM IN THAT PROCEEDING IN A FRESH SUIT. IN SHORT CASE THE OBJECTION AS TO THE MAINTAINABILITY OF THE SUIT WAS TAKEN AT THE VERY INITIAL STAGE BUT THAT WAS RESISTED AND THE APPELLA NT INVITED A DECISION BY THE DIST. MUNSIF. EVEN AT THE STAGE OF REVISION AGAINST THAT ORDER IN THE HIGH COURT HE TOOK THE RISK OF PROCEEDING WITH THE SUIT. THIS WAS, THE REFORE, NOT A CASE OF PROSECUTING THE PREVIOUS PROCEEDINGS BONAFIDE. BUT ON THE OTHER HAN D, HE DELIBERATE DID SO MAY BE FOR OBVIOUS REASON THAT IF HE HAD TO WITHDRAW THE SUIT HE WOULD HAVE TO GIVE NOTICE UNDER S. 80CPC TO THE GOVERNMENT, WAIT FOR THE EXPI RY OF THE PERIOD OF NOTICE OF TWO MONTHS AND THEREAFTER FILE A FRESH SUIT. TO AVOID THIS HE THOUGHT HE WOULD TAKE A CHANCE BUT THAT CHANCE BOOMERANGED AGAINST HIM. I T IS NOT A CASE WHERE HE PROSECUTED DUE TO IGNORANCE OF LAW OR BONAFIDE MIST AKE NOR CAN IT BE SAID THAT HE HAD MISCONCEIVED THE SUIT. NAME OF THE CASES CITED BY THE LEARNED ADVOCATE CAN ASSIST THE APPELLANT BECAUSE IN ALL OF THEM IT WAS EITHER A CASE OF MISTAKE OF LAW ON A DOUBTFUL POINT SUCH AS IN THE CASE OF BISHAMBHUR H ALDAR VS. BONOMALI HALDAR (1899) ILR 26 CAL 414 (FB), OR IGNORANCE OF LAW IN THE CASE OF RAMPRASAD VS. VIJAYKUMAR 1967 AIR 228 AT PARA 16 THE HONBLE COURT NOTED AS UNDER:- WHEN AFTER THE INSTITUTION OF A SUIT, A NEW PLAIN TIFF OR DEFENDANT IS ADDED, THE SUIT SHALL AS REGARDS HIM BE DEEMED TO HAVE B EEN INSTITUTED WHEN HE WAS SO MADE A PARTY..THEIR LORDSHIPS ARE OF THE OPINION THAT S.22 CONTEMPLATES CASES IN WHICH A SUIT IS DEFECTIVE BY REASON OF THE PERSON O R ONE OF THE PERSONS IN WHOM THE RIGHT OF SUIT IS VESTED NOT BEING BEFORE THE COURT. SECTION 133 OF THE CIVIL PROCEDURE CODE PROVIDES AGAINST THE DEFENCE OF A SUIT ON THI S GROUND AND ENABLES THE PROPER PARTY TO BE ADDED OR SUBSTITUTED. IF A IS THE RIGHT PERSON TO SUE, IT WOULD BE CLEARLY WRONG TO ALLOW HIM FOR THE SAKE OF AVOIDING THE LI MITATION ORDINANCE TO TAKE ADVANTAGE OF A SUIT IMPROPERLY INSTITUTED BY B. (EM PHASIS SUPPLIED). IN THE CASE OF THE RESPONDENT ALSO THE OBJECTION AS TO THE MAINTAINABILITY OF THE APPEAL WAS TAKEN AT THE INITIAL STAGES, THE DE PARTMENT ALSO TOOK NOTE OF IT VIDE THEIR EXPLANATION MENTIONED AND HEREINBEFORE, STILL THE DEPARTMENT DID NOT PROCEED TO CORRECT THE APPEAL THEY WAITED TILL THE DECISION OF THE ITAT KNOWING FULLY WELL THAT FILING OF THE APPEAL BY THE ACIT, CIR. 39 WAS CLEAR LY NOT VALID AND ILLEGAL. AS STATED EARLIER THE DEPARTMENT HAD FILED A NUMBER OF APPEAL S DURING THE SAME PERIOD BUT THE SAME WERE FILED BY THE AO HAVING CORRECT JURISDICTI ON. IN SOME WHAT SIMILAR CIRCUMSTANCES, THE DELAY WAS NOT CONDONED IN THE C ASE OF DEENA(DEED) REPORTED IN 6 SC 336, WHERE THE FACTS WERE THAT THE DEFENDANT CONTENDED THAT THE PLAINTIFFS CANNOT CLAIM TO HAVE PROSECUTED THE PREVIOUS SUIT IN GOOD FAITH SINCE IN THE WRITTEN STATEMENT ITSELF IT WAS SPECIFICALLY STATED THAT TH E SUIT WAS BAD FOR NON-JOINDER OF ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 8 NECESSARY PARTYTHE PLAINTIFF BEING AWARE OF THE O BJECTION HAD PURSUED THE MATTER. THE TRIAL COURT HELD THAT THE PLAINTIFFS DID NOT PU RSUE THE PROCEEDINGS OF THE PREVIOUS SUIT WITH DUE DILIGENCE AND GOOD FAITH. THIS JUDGE MENT WAS CONFIRMED BY DIST JUDGE BUT NEGATIVED BY THE HIGH COURT. HOWEVER, THE HONB LE SUPREME COURT RESTORED THE JUDGEMENT OF THE TRIAL COURT. ANOTHER JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SURENDRA KUMAR BOVEJA VS. CIT, WEALTH TAX DECIDED ON 2.5.200 6 ( A COPY WHEREOF IS ENCLOSED WHEREIN THE HONBLE HIGH COURT HAS HELD AS UNDER:- THE COUNSEL FOR APPELLANT HAS ARGUED THAT IN VI EW OF THE OBSERVATION MADE BY TRIBUNAL WHILE DISMISSING THE APPEAL OF RE VENUE, THE DELAY IN FILING THE APPEAL SHOULD HAVE BEEN CONDONED. IT WAS SUBMITTED THAT APPELLANT DID NOT PREFER APPEAL AGAINST THE ORDER INITIALLY AS HE WAS NOT AW ARE OF THE LEGAL POSITION. AFTER THE ORDER OF TRIBUNAL HE BECAME AWARE OF THE LEGAL POSITION AND THEREFORE, THE TRIBUNAL SHOULD HAVE CONDONED THE DELAY. IN ORDER TO GET DELAY CONDONED IN FILING OF AN AP PEAL, THE PARTY HAS TO SHOW SUFFICIENT CAUSE. SUFFICIENT CAUSE MEANS A CAUSE BE YOND THE CONTROL OF THE PARTY E.G. A MISTAKE MADE IN GOOD FAITH IN RESPECT OF EXERCISE OF DUE CARE AND ATTENTION. BUT WHERE THERE IS WANT OF DUE CARE AND ATTENTION OR WA NT OF DUE DILIGENCE OR SUFFICIENT CAUSE THE DELAY CANNOT BE CONDONED. THE APPELLANT WAS SATISFIED WITH THE RELIEF GRANTED BY CWT(A). AFTER BEING SATISFIED WITH THE R ELIEF GRANTED BY CWT(A), HE DID NOT PREFER AN APPEAL AGAINST THE ORDER. HOWEVER, TH E INCOME TAX DEPARTMENT PREFERRED THE APPEAL AGAINST THE ORDER OF THE CWT(A ) BEFORE THE TRIBUNAL. EVEN DURING THE ARGUMENTS BEFORE THE TRIBUNAL, APPELLANT SUPPORTED THE ORDER OF THE CWT(A) AND STATED THAT THE ORDER BE NOT REVERSED. A PPELLANT CHOSE TO PREFER AN APPEAL AGAINST THE ORDER OF CWT(A) ONLY AFTER THE O RDER OF THE TRIBUNAL MAKING SOME OBSERVATION IN HIS FAVOUR CAME. WE CONSIDER TH AT A PARTY WHO HAD BEEN CONTENDED WITH THE ORDER AND DUE TO THAT REASON HAS NOT PREFERRED AN APPEAL, CANNOT LATER ON, ON SEEING SOME OBSERVATION IN A JUDGEMENT OR A FINDING ABOUT THE LAW CANNOT PLEAD THAT THE DELAY BE CONDONED OF THE ENT IRE PERIOD FOR WHICH THE PARTY HAD FELT CONTENDED AND NOT PREFERRED AN APPEAL. THE APP ELLANT DID NOT PREFER AN APPEAL AGAINST THE ORDER OF CWT(A) FOR ABOVE FIVE YEAR IN ONCE CASE FOR ABOUT ONE AND HALF YEAR IN ANOTHER CASE. IGNORANCE OF LAW, APPELLANTS NEGLECT OR FAILURE TO SEEK LEGAL ADVICE IS NOT SUFFICIENT GROUND FOR CONDONATION OF DELAY. IGNORANCE OF LAW IS NO EXCUSE AND COURT CANNOT CONSIDER IGNORANCE OF LAW O R MISTAKE OF LAW AS SUFFICIENT CAUSE FOR CONDONATION OF DELAY. IF CONDONATION IS A LLOWED ON SUCH GROUND, THEN THERE WOULD BE NO END TO THE LITIGATION AND A PARTY CAN P REFER AN APPEAL AGAINST AN ORDER AT ANY POINT OF TIME AFTER FINDING SOME OBSERVATION IN A JUDGMENT SUBSEQUENTLY DELIVERED BY A HIGHER FORUM. IN FACT THIS JUGDEMENT ALSO COVERS THE OBSERVATIO NS OF THE HONBLE ITAT IN THE CASE OF THIS RESPONDENT MADE IN ITS ORDER DATED 28.7.06 WITH REGARD TO THE ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 9 QUESTION RAISED IN THE COURSE OF HEARING WHICH HAS NOW BEEN TAKEN AS SHELTER BY THE LD.AO IN HIS CONDONATION PETITION IN LATER PART O F PARA THREE. IN ANOTHER JUDGEMENT IN THE CASE OF RAM PRASAD DA GDURAM REPORTED IN 1967 AIR 278 (SC) WHERE THE PLAINTIFF BEING ADOPTED SON FILED HE SUIT BUT HIS ADOPTION WAS TREATED AS NOT VALID AND THEREFORE OTH ER PERSONS WERE JOINED AS PLAINTIFF, IT WAS HELD THAT THE SUIT SHALL BE TREAT ED TO HAVE BEEN FILED ON THE DATE WHEN THE NEW PLAINTIFFS WERE ADDED AND HENCE THE SUIT WA S BARRED BY LIMITATION. IT WAS ALSO HELD THAT THE LIMITATION CAN BE WAIVED AS THE ORIGINAL PLAINTIFF WAS A NOT EXISTENT PLAINTIFF. THE SUIT CANNOT BE TREATED AS CONTINUATI ON OF PREVIOUS SUIT AND THE DELAY CANNOT BE CONDONED. THE HONBLE SUPREME COURT IN THE CASE OF RAMLAL V. REWA COALFIELDS LTD AIR 1962 SC 361 HAS HELD THAT THE CAUSE FOR THE DEL AY IN FILING THE APPEAL WHICH BY DUE CARE AND ATTENTION COULD HAVE BEEN AVOIDED CANN OT BE A SUFFICIENT CAUSE WITHIN THE MEANING OF LIMITATION PROVISION. IN THE JUDGEMENT OF MEGHJI GIRDHARILAL (MP) REP ORTED IN 177 ITR PAGE 294 IT HAS BEEN HELD THAT NO PREFERENTIAL TREATMENT CAN BE GIVEN TO THE GOVERNMENT DEPARTMENT AND IF THERE WAS NO CONFUSION IN FILING OF THE APPEAL, DELAY CANNOT BE CONDONED. FURTHER THE DELAY IN THIS CASE IS 1504 DAYS. THE HONBLE SUPREME COURT IN THE CASE OF VEDABAI V SHANTARAM BABURAO PATIL 253 I TR 798 HAS HELD IN EXERCISING DISCRETION, UNDER SECTION 5 OF LIMITAT ION ACT THE COURTS SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BET WEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF FEW DAY S. WHEREAS IN THE FORMER CASE, THE CONSIDERATION PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. IN THE CASE OF HIRACON INDIA LTD REPORTED IN 2006 (SOT) IT HAS BEEN HELD THAT INEFFICIENCY IN APPELLANTS OFFICE IS NO CAUSE OF CONDONATION. IN THE CASE OF RAMMOHAN KABRA REPORTED IN 257 ITR PAGE 773 THE DELAY OF EVEN 5 DAYS WAS NOT CONDONED SINCE THE APPELLANT WA S NOT ALERT. THE COURT HELD: THE PROVISIONS RELATING TO PRESCRIPTION OF THE L IMITATION IN EVERY STATUTE MUST NOT BE CONSTRUED SO LIBERALLY THAT IT WOULD HA VE THE EFFECT OF TAKING AWAY THE BENEFIT ACCRUING TO THE OTHER PARTY IN A MECHANICAL MANNER. WHERE THE LEGISLATURE SPELLS OUT A PERIOD IF LIMITATION AND PROVIDES FOR POWER TO DO CONDONE THE DELAY AS WELL, THEN SUCH DELAY CAN BE CONDONED ONLY FOR SUFF ICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. NOW IT I S SETTLED PRINCIPLE OF LAW THAT THE PROVISIONS RELATING TO SPECIFIED PERIOD OF LIMITATI ON MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 10 IN THE CASE OF M.S NUTON INDIA LTD REPORTED IN 21 9 ITR PAGE 736 THE HONBLE DELHI HIGH COURT HAS HELD THAT THE DEPARTME NT WAS EQUIPPED WITH THE FULL LEGAL DEPARTMENT AND THEREFORE FILING OF APPEAL BY A WRONG PERSON CANNOT BE SAID TO BE BONAFIDE. THERE HAS TO BE SUFFICIENT AND COGENT REASONS TO SHOW THAT THE DEPARTMENT ACTED WITH DUE DILIGENCE. IN THE CASE OF HINDUSTHAN AERONAUTICS 6 CTR PAGE 73 THE HONBLE ORISSA HIGH COURT HAS HELD THAT THERE HAS TO BE DUE DILIGE NCE AND CARE TO TAKEN THE ACTION AT THE APPROPRIATE TIME. IN NIHALKARAN VS. CWT THE HONBLE MP HIGH COURT 1 75 ITR PAGE 14 HAS HELD IF THERE WAS NO DILIGENCE ON THE PART OF THE APPLICANT THERE CANNOT BE CONDEMNATION OF DELAY. IT HAS TO BE SHOWN THAT THE AUTHORITIES ACTED WITH DUE DILIGENCE. THE ITAT IN THE CASE OF TRACTOR & FARM EQUIPMENTS REPORTED IN 105 TTJ PAGE 705 HAVE HELD THAT THERE HAS TO BE DUE DILIGEN CE WHILE ASKING FOR CONDONATION OF DELAY. IN THE CASE OF CIT VS. P.M. SHAH THE HONBLE BOMB AY HIGH COURT 39 CTR PAGE 123 HAS HELD THAT EVEN IF LARGE AMOUNT IS INVO LVED, THERE SHOULD BE MATERIAL TO CONDONE THE DELAY. IN THAT CASE FORGETFULNESS WAS B ROUGHT AS A REASON WHICH WAS NOT CONSIDERED TO BE PROPER. IN THE CASE OF RAJU RAMCHANDRA BHENGDE 148 ITR PA GE 391 IT HAS BEEN HELD THAT EVERY MISTAKE CANNOT BE CONDONED. IN TH IS CASE MISCONCEIVED APPLICATION U/S. 154 WAS FILED AND APPEAL WAS FILED THEREAFTER. THE DELAY WAS NOT CONDONED. THE SPL BENCH AHMEDABAD IN THE CASE REPORTED IN 8 4 TTJ PAGE 725 HAS HELD THAT THE RULES OF LIMITATION SHOULD BE FOLLOWE D OTHERWISE THERE IS NO FINALITY OF THE PROCEEDINGS. THE CALCUTTA HIGH COURT IN THE CASE OF MOUNT VIE W EXPORTS 258 ITR PAGE 46 HAS HELD THAT NO PERSON IS ENTITLED TO TAKE ADVA NTAGE OF HIS OWN UNEXPLAINED INORDINATE DELAY OR DEFAULT IN MAKING AN APPLICATIO N. SIMILARLY, IT IS SETTLED LAW THAT NO PARTY IS ALLOWED TO TAKE ADVANTAGE OF HIS OWN W RONG. IN THIS CASE THE DEPARTMENT NOW WANTS TO TAKE ADVANTAGE OF THEIR OWN WRONG WHIC H SHOULD NOT BE PERMITTED. IT HAS BEEN HELD BY THE HONBLE SUPREME COURT THA T A THIRD PARTY HAS NO RIGHT TO FILE AN APPEAL. RAM BHAGWAN SINGH & ORS ( 3 SCR 957). THEREFORE, THE ACTUAL PARTY CANNOT COME FORWARD TO TAKE SHELTER O F SUCH ILLEGAL SUIT TO BUY TIME. NO OTHER REASON HAVE BEEN GIVEN BY THE AO IN HIS PETITION FOR CONDONATION OF DELAY. IN FACT THERE IS NO PRAYER FOR CONDONATIO N OF DELAY BUT THE PRAYER IS FOR RECALLING THE EARLIER ORDER AND ADMISSION OF THE FR ESH APPEAL. ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 11 IT MAY BE MENTIONED THAT THE DEPARTMENT EVEN AFTE R RECEIPT OF THE ORDER OF THE ITAT CONSIDERED THE FILING OF THE APPEAL BY ACI T CIRCLE 39 AS LAWFUL AND VALID AND FILED AN APPEAL BEFORE THE HONBLE HIGH COURT U/S. 260A BUT THE SAID APPEAL HAS BEEN DISMISSED. THEREFORE, EVEN OTHERWISE THE DEP ARTMENT NOW CANNOT COME FORWARD AND CLAIM CONDEMNATION OF DELAY SINCE THE H ONBLE HIGH COURT HAS ALSO AGREED WITH THE VIEW OF THE TRIBUNAL THAT THE EARLI ER ORDER WAS BAD IN LAW. IN VIEW OF THE ABOVE THE PETITION TO CONDONE THE DELAY BY THE AO IN FILING THE APPEAL IS NOT MAINTAINABLE AND ON THE FACTS OF THE CASE THE SAME IS LIABLE TO BE REJECTED AND IT IS REQUESTED TO THE HONBLE TRIBUNA L TO KINDLY REJECT THE SAME. APART FROM THAT EVEN THE PRESENT APPEAL FILED IS ALSO BAD IN LAW. IT APPEARS FROM THE MEMO OF APPEAL IN FORM NO.36 THAT THE AO AFFIRMED AND VERIFIED THE APPEAL ON 19 TH OCTOBER 2006 WHEN THERE WAS NO AUTHORIZATION TO F ILE THE APPEAL WITH HIM ON THAT DAY. HE RECEIVED THE AUTHORIZATION ON 2 3.10.2006 AS APPEARS FROM THE CERTIFICATE OF AUTHORIZATION FILED BEFORE THE HONB LE ITAT A COPY OF WHICH IS ENCLOSED HEREWITH. THE LD.DR HAS NOW FILED THE COPY OF THE ORDER SHE ET OF THE LD. CIT. IT WILL BE APPARENT FROM THE SAID ORDER SHEET THAT THERE IS NO INCORPORATION OF THE EARLIER COMMUNICATION IN THE SAID ORDER SHEET. THEREFORE, THE VERACITY OF THE SAID ORDER SHEET AS ON THE DATES OF ENTRIES IS NOT FREE FROM D OUBT. THE ITAT HAS CONSIDERED THE FACTS IN SUCH SITUATION IN THE CASE OF SURESH KUMAR AGARWALA (IN ITA NO.1964/KOL/2005 DATED 20.3.2007 COPY ENCLOSED. THE RE IS AN ORDER SHEET WHICH STARTS FROM 12.10.2007 (HAND WRITTEN). THEN THERE I S AN ENTRY COMPUTER PRINTED WHERE THE AO TECHNICAL HAS GIVEN HIS COMMENTS. THER E IS NO DIRECTION BUT AN ENDORSEMENT FILE FURTHER APPEAL BEFORE THE ITAT. THIS DIRECTION IS NOT THERE IN THE WRITTEN COMPUTERIZED COPY FILED IN THE FIRST INSTAN CE BY THE LD.DR NOR THIS FINDS PLACE IN THE ORDER SHEET. THE DIRECTION EVEN IF MENTIONE D IN THE ORDER SHEET CANNOT BE TAKEN COGNIGENCE SINCE THE LD. CIT UNDER HER SIGNA TURE HAS DIRECTED THE AO TO FILE THE APPEAL ONLY ON 23.X.2006, WHICH DIRECTION CANNO T NOW BE REPAIRED BY PRODUCING THE ORDER SHEET WHEN THE SAID FACT WAS DISCLOSED TO THE HONBLE TRIBUNAL. THEREFORE, THE APPEAL HAVE BEEN FILED WIT HOUT ANY AUTHORIZATION BY THE LD.CIT AND IS LIABLE TO BE REJECTED. 4. FROM THE ABOVE, IT IS APPARENT THAT THE REVENUE WAS FULLY AWARE OF THE CLAIM THAT APPEALS WERE FILED BY THE PERSON WITHOUT BEING PRO PER JURISDICTION. REVENUE DID NOT BOTHER TO CORRECT THE POSITION. IT MADE A CONSCIOUS DECISION AND STRICT TO ITS STAND. REVENUE HAS WAITED FOR THE DISMISSAL OF THE APPEALS BY THE ITAT AND TH EREAFTER THE REVENUE FILED FRESH APPEALS AFTER DELAY OF OVER 4 YEARS. AS A MATTER OF FACT EV EN AFTER RECEIPT OF THE SAID ORDER OF THE ITAT, THE DEPARTMENT HAS PREFERRED APPEAL BEFORE THE HON BLE HIGH COURT OF CALCUTTA, BUT THE SAME ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 12 HAS ALSO BEEN DISMISSED. THE PLEA THAT DISMISSAL O F APPEAL BY THE TRIBUNAL AND THE HONBLE HIGH COURT CAN GIVE A PERSON FRESH CAUSE OF ACTION CIRCU MVENTING THE LIMITATION PERIOD PRESCRIBED IS NOT SUSTAINABLE. HENCE, NOW THE DEPARTMENT CANNOT COME FORWARD AND CLAIM THAT THERE IS A MISTAKE ON THE P ART OF THE REVENUE FOR NOT FILING PROPER APPEALS 4 YEA RS AGO. HENCE, THE DELAY OF FOUR YEAR CANNOT BE CONDONED ON THE FACTS AND CIRCUMSTANCES OF THE CASE . 4.1 WE FIND THAT THE TRIBUNAL HAS ALREADY DISMISS ED THE ASSESSEES APPEAL ON THE COUNT OF LACK OF JURISDICTION. THE TRIBUNAL HAS ALSO CONSIDERED THE ARGUMENT THAT SECTION 292B CAN NOT BE INVOKED AS FUNDAMENTAL INFIRMITIES ARE NOT CURABLE U/S. 292 B OF THE ACT. AS A MATTER OF FACT, THE CONDONATION OF DELAY IN THIS CASE WOULD TANTAMOUNT TO UNSETTLE THE EAR LIER ORDER OF THE TRIBUNAL, WHICH IS CERTAINLY NOT PERMISSIBLE AS PER LAW. FURTHERMORE, IT IS NOTED TH AT THE HONBLE HIGH COURT OF CALCUTTA HAS ALSO DISM ISSED THE APPEAL BY THE REVENUE AGAINST THE ITAT ORDER. H ENCE, OUR ACTION OF CONDONING THE DELAY OF 4 YEARS WILL ALSO HAVE THE EFFECT OF RENDERING THE HONBLE HIGH COURTS ORDER AS INFRUCTUOUS. THIS WILL BE GROSS INDISCIPLINE ON OUR PART. MOREOVER, THE CASE LAWS AS RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE SUP PORT THE CASE OF THE ASSESSEE IN THESE CIRCUMSTANCES, IN OU R CONSIDERED OPINION ON THE FACTS AND CIRCUMSTANCE S OF THE CASE OF THE CASE THE DELAY IN FILING THE APPEA L OVER OF OVER 4 YEARS CANNOT BE CONDONED. HENCE, THE APPEALS FILED BY THE REVENUE ARE DISMISSED IN LIMIN E. 5. CROSS OBJECTION NO.102 & 103/KOL/06[ARISING OUT OF ITA NOS.1768 & 1769/KOL/06 A.Y 1997-09] 6. SINCE WE HAVE ALREADY DISMISSED THE REVENUES AP PEALS ON ACCOUNT OF NON CONDONATION OF DELAY, THE COS FILED BY THE ASSESSEE STAND ALSO DISMISSED. 7. IN THE RESULT, THE APPEALS OF THE REVENUE AND C ROSS OBJECTIONS OF THE ASSESSEE BOTH ARE DISMISSED AS STATED ABOVE. . + ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/201 4 SD/- SD/- [ 1 , ] [ , ] [ GEORGE MATHAN, JUDICIAL MEMBER ] [ SHAMIM YAHYA, ACCOUNTANT MEMBER ( + ) DATED : 15/09/2014 ITA NOS.1768,1769/K/06 & CO NOS.102,103//K/06-PB-B M/S.MOHAL CHAND MOTILAL KOTHARI & CO. 13 ** PRADIP SPS * &2 32 / COPY OF THE ORDER FORWARDED TO: 1. . % / THE APPELLANT : I.T.O W 44(2), KOLKATA 2 &'% / THE RESPONDENT- M/S. MOHALCHAND MOTILAL KOTHAR I & CO 207 M.D RD, KOLKATA 3. / THE CIT, 4. ( )/ THE CIT(A) 5 . & / DR, KOLKATA BENCH 6 . GUARD FILE . '2 & / TRUE COPY, / BY ORDER, / ASSTT REGISTRAR