RAJESH RAMKUMAR DAGA, MUMBAI V. ITO 14(1)-1, MUMBAI

ITA 2837/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49025 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 09-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Assessee Lawyers: VIJAY MEHTA
• Keywords: Rectification of order; Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 154; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SMT. ASHA VIJAYRAGHAVAN, JUDICIAL MEMBER. I.T.A. NO. 2837/MUM/2010 ASSESS MENT YEAR : 2004-05. RAJESH RAMKUMAR DAGA, THE INCOME-TAX OFFICER, 5 TH FLOOR, 18/22, VS. 14(1)-1, SHEIKH MEMON STREET, MUMBAI. MUMBAI 400 002. PAN : AEWPD7914A. APPELLANT. RESPONDENT. APPELLANT BY : SHRI VIJAY MEHTA. RESPONDENT BY : SMT. VANDANA SAGAR. O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LEARNED CIT(APPEALS)-25, MUMBAI DATED 07-01-2010 WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FILED AFTER THE EXPIRY OF PRESCRIBED T IME IN LIMINE DECLINING TO CONDONE THE DELAY IN FILING THE SAME. 2. IN THIS CASE, AN ORDER PASSED BY THE AO U/S 154 REJECTING THE APPLICATION FILED BY THE ASSESSEE FOR RECTIFICATION OF THE ORDER PASS ED U/S 143(3) WAS ASSAILED BY THE ASSESSEE IN AN APPEAL FILED BEFORE THE LEARNED CIT( APPEALS). THERE WAS A DELAY OF 13 MONTHS AND 13 DAYS ON THE PART OF THE ASSESSEE I N FILING THE SAID APPEAL AND AN APPLICATION WAS MOVED BY THE ASSESSEE BEFORE THE LE ARNED CIT(APPEALS) SEEKING CONDONATION OF THE SAID DELAY ON THE FOLLOWING GROU NDS : 2 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. AS PER RECTIFICATION ORDER U/S. 154 DATED 30.05.2 008 STATED TO HAVE BEEN RECEIVED ON 18.06.2008 THE AO DISALLOWED SHORT TERM CAPITAL LOSS OF RS.6,06,116/-, WHICH WAS RECEIVED AFTER FILING OF A PPEAL ON 24.01.2007 AGAINST THE ASSESSMENT ORDER U/S. 143(3). IN THE AS SESSMENT ORDER, THE AO DISALLOWED SHORT TERM CAPITAL GAIN OF RS.6,88,716/- AND HAD DISALLOWED CAPITAL LOSS OF RS.6,06,116/- FOR WANT OF VERIFICAT ION. IN THE APPEAL FILED, THE APPELLANT CLAIMED RELIEF OF RS.6,88,716/- ONLY AND DID NOT CLAIM RELIEF OF RS.6,06,116/- AS A MATTER WAS PENDING WITH AO. DURI NG APPEAL PROCEEDINGS DUE TO INADVERTENCE AND MISCONCEPTION THAT BEING SA ME GROUND RELIEF IS AUTOMATIC, APPELLANT HAD NOT ADDED OR AMENDED RELIE F CLAIMED FOR SHORT TERM CAPITAL LOSS DISALLOWED U/S. 154. ON RECEIPT O F THE APPELLATE ORDER THE APPELLANT REALIZED THAT RELIEF FOR RS.6,88,716/- WA S ALLOWED BY DELETING DISALLOWANCE OF SHORT TERM CAPITAL LOSS. IN VIEW OF THE ABOVE SUBMISSIONS, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY IN FILIN G THE APPEAL AND A REQUEST WAS MADE TO THE LEARNED CIT(APPEALS) TO CONDONE THE SAI D DELAY. 3. THE LEARNED CIT(APPEALS) DID NOT FIND MERIT IN T HE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE AND DECLINED TO CONDONE THE DELAY FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO.2 OF HIS IMPUGNED ORDER : THERE IS NO DISPUTE REGARDING THE FACT THAT THE A PPELLANT ON RECEIPT OF RECTIFICATION ORDER U/S 154 OF THE I.T. ACT PASSED BY THE AO ON 30.05.2008 HAS NOT FILED ANY APPEAL WITHIN THE SPECIFIED PERIO D OF TIME. IT IS ALSO A FACT THAT THE STATUTE HAS PRESCRIBED A TIME LIMIT AND AT THE SAME TIME, GIVEN POWER FOR CONDONATION OF DELAY FOR SUFFICIENT AND REASONA BLE CAUSE. THE POSITION OF LAW REQUIRES THAT THE DELAY SHOULD HAVE OCCURRED IN SPITE A PROPER DILIGENCE ON THE PART OF ASSESSEE. IN OTHER WORDS, THERE SHOU LD EXIST CONDITIONS BEYOND THE CONTROL OF APPELLANT FOR THE DELAY. FROM THE AB OVE REASONS EXPLAINED BY THE APPELLANT, IT IS EVIDENT THAT THE DELAY HAS OCC URRED DUE TO GROSS NEGLIGENCE ON THE PART OF THE APPELLANT. THE CLAIM OF INADVERTENT MISTAKE OF NOT FILING THE APPEAL CANNOT BE CONSIDERED AS A SUF FICIENT CAUSE FOR CONDONING A DELAY. THE NEGLIGENCE AND NON-DILIGENT BEHAVIOR OF THE APPELLANT IS OBVIOUS FROM THE ABOVE STATED FACTS OF THE APPELLANT ITSELF AS IT HAS ADMITTED OF HAVING NOT RAISED ANY GROUND IN TH E APPEAL FILED AGAINST THE DISALLOWANCE MADE AND ALSO IN THE ADDITIONAL GROUND S RAISED AND SUBMISSIONS MADE DURING THE APPELLATE PROCEEDINGS. IT IS TRUE THAT THE COURTS 3 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. HAVE TAKEN A LIBERAL VIEW IN MATTERS OF CONDONATION OF DELAY IN APPEAL. BUT AT THE SAME TIME, IN P.K. RAMACHANDRAN VS. STATE OF KE RALA AIR 1998 (HC) 227, IT WAS POINTED OUT THAT THE LAW OF LIMITATION CANNOT BE DISREGARDED ON EQUITABLE GROUNDS. FOLLOWING THIS LINE OF REASONING , IN THE LATER CASE, THE HIGH COURT IN CIT VS. RAM MOHAN KABRA 257 ITR 773 ( P&H) DISMISSED AN APPEAL BY THE INCOME-TAX DEPARTMENT AGAINST THE TRI BUNAL REFUSING TO CONDONE THE DELAY OF 5 DAYS IN DEPARTMENTAL APPEAL. THE CASE ILLUSTRATES THAT THE TIME LIMIT SHOULD NOT BE LIGHTLY DISREGARDED BY CONSTRUCTING CONDONATION AS A MATTER OF ROUTINE. IN THE CASE OF THE APPELLAN T, I FIND THAT IT HAS TAKEN THE THINGS VERY LIGHTLY AND AS A MATTER OF ROUTINE DESP ITE THE FACT THAT ORDER U/S 154 WAS PASSED AGAINST IT CLEARLY STATING THAT THE CLAIM OF LOSS BEING SUBJECT MATTER OF APPEAL CANNOT BE ALLOWED. BUT THE APPELLA NT IN THE APPEAL FILED HAS NEITHER RAISED THIS MATTER AS A GROUND NOR BEFORE T HE APPELLATE AUTHORITY FURNISHED ANY SUBMISSIONS ON THE ISSUE. THEREFORE, THE DELAY IN FILING THE APPEAL CANNOT BE CONDONED. FOR THE REASONS GIVEN ABOVE, THE LEARNED CIT(APPEAL S) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE HOLDING THAT THE SAME WAS BARRED BY LIMITATION. HE ALSO HELD THAT THERE WAS NO MERIT IN THE SAID APPEAL OF THE ASSESS EE AND IT WAS LIABLE TO BE DISMISSED EVEN ON MERITS. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBU NAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE EXPLAINED B EFORE US THE SEQUENCE OF EVENTS AND ALSO TOOK US THROUGH THE RELEVANT ORDERS PASSED BY THE AO U/S 143(3) AND SECTION 154 AS WELL AS THE ORDER PASSED BY THE LEARNED CIT(APPEALS) DISPOSING OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORD ER PASSED BY THE AO U/S 143(3). HE CONTENDED ON THE BASIS OF THESE EVENTS WHICH TOO K PLACE IN THE CASE OF THE ASSESSEE THAT THE ASSESSEE HAD ENTERTAINED A BONA-F IDE BELIEF THAT THE RELIEF SOUGHT BY HIM IN RESPECT OF DISALLOWANCE OF LOSS ARISING F ROM TRANSACTION IN IL&FS GROWTH AND VISION FUND BONUS PLAN AMOUNTING TO RS.6,06,116 BY WAY OF RECTIFICATION APPLICATION FILED U/S 154 WAS ALLOWABLE IN THE FORM OF ALTERNATIVE REMEDY BY WAY OF AN APPEAL FILED AGAINST THE ORDER PASSED U/S 143(3) WHICH WAS PENDING BEFORE THE LEARNED CIT(APPEALS). HE SUBMITTED THAT THIS BELIEF . INTER ALIA, WAS BASED ON THE 4 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. ORDER PASSED BY THE AO U/S 154 REJECTING THE APPLIC ATION FILED BY THE ASSESSEE FOR RECTIFICATION ON THE GROUND THAT THE RELIEF CLAIMED THEREIN IN RESPECT OF LOSS OF RS.6,06,115/- IN RESPECT OF BONUS UNIT OF IL&FS WAS THE SUBJECT MATTER OF THE SAID APPEAL. HE SUBMITTED THAT THIS BELIEF WAS ALSO BASE D ON THE ADVICE GIVEN BY THE CHARTERED ACCOUNTANT OF THE ASSESSEE THAT NO FURTHE R STEPS WERE REQUIRED TO BE TAKEN AGAINST THE ORDER PASSED BY THE AO U/S 154 AS THE RELIEF CLAIMED THEREIN COULD BE TAKEN CARE OF IN THE QUANTUM APPEAL WHICH WAS PE NDING BEFORE THE LEARNED CIT(APPEALS). HE ALSO FILED AN AFFIDAVIT OF THE SAI D CHARTERED ACCOUNTANT OF THE ASSESSEE OWNING THE DELAY IN FILING THE APPEAL BEFO RE THE LEARNED CIT(APPEALS). HE CONTENDED THAT THERE WAS THUS A SUFFICIENT CAUSE FO R THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) AND TH E SAME OUGHT TO HAVE BEEN CONDONED BY THE LEARNED CIT(APPEALS). IN SUPPORT OF THIS CONTENTION, THE LEARNED COUNSEL FOR THE ASSESSEE RELIED, INTER ALIA, ON THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS . MST. KATIJI AND OTHERS 167 ITR 471 AS WELL AS IN THE CASE OF N. BALKRISHAN VS. M. KRISHNAMURTHY (1998) 7 SCC 123, AND THAT OF HONBLE BOMBAY HIGH COURT IN THE C ASE OF BABURAO DEORAO WANKHEDE VS. SEWA SAHAKARI SANSTHA AND ANOTHER [198 9 (2) BOM. C.R. 15]. 5. THE LEARNED DR, ON THE OTHER HAND, STRONGLY SUPP ORTED THE IMPUGNED ORDER OF THE LEARNED CIT(APPEALS) DECLINING TO CONDONE TH E DELAY ON THE PART OF THE ASSESSEE IN FILING HIS APPEAL. SHE SUBMITTED THAT T HERE WAS NO SUFFICIENT AND REASONABLE CAUSE WHICH COULD BE PUT FORTH BY THE AS SESSEE TO EXPLAIN THE SAID DELAY AS RIGHTLY HELD BY THE LEARNED CIT(APPEALS). SHE IN VITED OUR ATTENTION TO THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT I N THE CASE OF CIT VS. RAM MOHAN KABRA 257 ITR 773 RELIED UPON BY THE LEARNED CIT(APPEALS) IN HIS IMPUGNED ORDER AND SUBMITTED THAT THE DECISION OF T HE TRIBUNAL REFUSING TO CONDONE THE DELAY OF EVEN 5 DAYS IN FILING THE DEPA RTMENTAL APPEAL WAS UPHELD BY 5 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. THE HONBLE PUNJAB AND HARYANA HIGH COURT. SHE STRO NGLY RELIED ON THE SAID JUDICIAL PRONOUNCEMENT AND CONTENDED THAT THE IMPUG NED ORDER OF THE LEARNED CIT(APPEALS) REFUSING TO CONDONE THE DELAY OF 13 MO NTHS AND 13 DAYS ON THE PART OF THE ASSESSEE IN FILING HIS APPEAL DESERVES TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL ON RECORD. AS EXPLAINED BY THE LEARNED COU NSEL FOR THE ASSESSEE FROM THE RELEVANT DOCUMENTARY EVIDENCE PLACED IN HIS PAPER B OOK, NO APPEAL AGAINST THE ORDER PASSED BY THE AO U/S 154 WAS FILED BY THE ASS ESSEE WITHIN THE PRESCRIBED TIME AS HE WAS UNDER A BONA-FIDE BELIEF THAT THE RE LEVANT CLAIM THEREIN WAS EVEN OTHERWISE ALLOWABLE IN THE APPEAL FILED AGAINST THE ORDER U/S 143(3) WHICH WAS PENDING BEFORE THE LEARNED CIT(APPEALS). THIS BONA- FIDE BELIEF OF THE ASSESSEE WAS BASED ON THE OBSERVATION MADE BY THE AO HIMSELF IN THE ORDER PASSED U/S 154 REJECTING THE RELIEF SOUGHT BY THE ASSESSEE BY WAY OF RECTIFICATION ON THE GROUND THAT THE SAME WAS THE SUBJECT MATTER OF APPEAL FILE D BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS). EVEN THE CHARTERED ACCOUNTANT OF THE ASSESSEE ADVISED THE LATTER THAT NO FURTHER STEPS WERE REQUIRED TO BE TA KEN AGAINST THE ORDER PASSED BY THE AO U/S 154 AS THE RELIEF SOUGHT BY WAY OF AN APPLIC ATION FOR RECTIFICATION COULD BE TAKEN CARE OF IN THE APPEAL WHICH WAS PENDING BEFOR E THE LEARNED CIT(APPEALS). AT THE TIME OF HEARING BEFORE US, THE AFFIDAVIT OF THE SAID CHARTERED ACCOUNTANT HAS BEEN FILED BY THE LEARNED COUNSEL FOR THE ASSESSEE WHEREIN HE HAS AFFIRMED THE RELEVANT FACTS ON OATH AS UNDER : 1. I SAY THAT I AM A CHARTERED ACCOUNTANT AND, AS SUCH, RENDERING PROFESSIONAL SERVICES TO SHRI RAJESH RAMKUMAR DAGA SINCE 2008 WHEN HIS APPEAL FOR A.Y. 2004-05 WAS PENDING BEFORE THE LEAR NED CIT(A) IN WHICH DISALLOWANCE OF SHORT TERM CAPITAL GAIN OF RS.6,48, 978/- ON THE GROUND OF BONUS STRIPPING WAS DISPUTED. I FURTHER STATE THA T DURING THE COURSE OF STUDY OF THE CASE PAPERS INCLUDING THE WRITTEN SUBMISSION S FILED BY THE EARLIER CHARTERED ACCOUNTANT, IT WAS FOUND OUT THAT THE DIS ALLOWANCE OF 6 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. RS.6,06,115/- MADE UNDER SIMILAR HEAD AND FOR WANT OF DETAILS WAS, HOWEVER, NOT ASSAILED. I FURTHER STATE THAT WHEN ENQUIRED FO R THE REASON THEREFOR, I WAS INFORMED THAT SUBSEQUENT TO THE ASSESSMENT ORDER, T HE ASSESSEE HAD MOVED AN APPLICATION U/S 154 OF THE ACT ALONG WITH DETAILS I N RESPECT THEREOF. 2. I STATE THAT ON ENQUIRY, THE ASSESSEE HAD BROUG HT TO MY NOTICE THE APPLICATION U/S 154 OF THE ACT FILED BY HIM ON 27.0 4.2007 ALONG WITH THE SUPPORTING DETAILS IN RESPECT OF RS.6,06,115/- INIT IALLY AND THEREAFTER THE ORDER DATED 30.05.2008 PASSED BY THE ASSESSING OFFI CER AT THAT STAGE, I HAD ADVISED HIM THAT NO FURTHER STEPS WERE REQUIRED TO BE TAKEN AGAINST THE SAID DISALLOWANCE AS THE PRAYER CONTAINED IN THE APPLICA TION FOR RECTIFICATION COULD BE TAKEN CARE OF IN THE PENDING QUANTUM APPEA L BEFORE THE LEARNED CIT(A) AS WELL. I FURTHER STATE THAT AFTER THE RECE IPT OF THE ORDER OF THE LEARNED CIT(A) DATED 19.02.2009 ON 18.03.2009, DUE TO A SHEER OVERSIGHT, NO ACTION WAS TAKEN IMMEDIATELY. I FURTHER STATE THAT ABOUT 5 MONTHS THEREAFTER, THIS DELAY WAS REALIZED DURING AUGUST, 2009 AND AFT ER TAKING IMMEDIATE STEPS THE APPEAL AGAINST THE ORDER OF THE ASSESSING OFFIC ER U/S. 154 OF THE ACT WAS PREPARED AND FILED BEFORE THE LEARNED CIT(A) ON 31. 08.2009. I FURTHER STATE THAT, THUS, THE DELAY WAS NOT CAUSED DUE TO ANY NEG LIGENCE OR LATCHES ON THE PART OF THE ASSESSEE BUT SOLELY DUE TO MY UNINTENTI ONAL DELAY. 3. I SAY THAT WHATEVER STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. 7. HAVING REGARD TO THE CONTENTS OF THE AFFIDAVIT F ILED BY THE CHARTERED ACCOUNTANT OF THE ASSESSEE AND KEEPING IN VIEW THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US, WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEAL OF THE ASSESSEE BEFORE THE LEARNE D CIT(APPEALS) WAS CLEARLY ATTRIBUTABLE TO THE MISTAKE COMMITTED BY HIS CHARTE RED ACCOUNTANT. IN THE CASE OF N. BALKRISHNAN VS. M. KRISHNAMURTHY (SUPRA) CITED B Y THE LEARNED COUNSEL FOR THE ASSESSEE, THE HONBLE SUPREME COURT HAD AN OCCASION TO CONSIDER A SIMILAR ISSUE AND THE DELAY OF 883 DAYS IN FILING AN APPLICATION WAS HELD TO BE CONDONABLE BY THEIR LORDSHIPS OF APEX COURT SINCE THE SAID DELAY WAS CAUSED DUE TO FAILURE OF THE ADVOCATE TO INFORM THE APPELLANT AS WELL AS HIS FAI LURE TO TAKE ACTION IN THE MATTER IN TIME. IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI - 167 ITR 471, 7 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. THE HONBLE SUPREME COURT HAS OBSERVED THAT THE EXP RESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC T O ENABLE TO COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB-SERVES THE END S OF JUSTICE. IN THE CASE OF RAMNATH SAO AND OTHERS VS. GOBARDHANDAS SAO AND OTH ERS, THE HONBLE SUPREME COURT HAS HELD THAT THE EXPRESSION SUFFICIENT CAUS E WITHIN THE MEANING OF SECTION 5 OF LIMITATION ACT SHOULD RECEIVE LIBERAL CONSTRUC TION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHEN NO NEGLIGENCE OR INACTION OR WANT OF BONA FIDE IS IMPUTABLE TO THE PARTY. 8. AS REGARDS THE DECISION OF HONBLE PUNJAB & HARY ANA HIGH COURT IN THE CASE OF CIT VS. RAM MOHAN KABRA (SUPRA) RELIED UPON BY T HE LEARNED CIT(APPEALS) IN HIS IMPUGNED ORDER AS WELL AS BY THE LEARNED DR AT THE TIME OF HEARING BEFORE US, IT IS OBSERVED THAT THE FACTS INVOLVED IN THE SAID CAS E WERE ENTIRELY DIFFERENT INASMUCH AS THE DELAY IN FILING THE APPEAL ON THE PART OF TH E DEPARTMENT WAS NOT CONDONED BY THE TRIBUNAL FOR THE REASONS THAT THE AFFIDAVIT OF A PERSON WHO WAS DEALING WITH THE FILE WAS NOT FILED AND THE AFFIDAVIT FILED ON BEHAL F OF THE DEPARTMENT WAS BASED ON HEARSAY AND NO FACTS WERE TRUE TO THE KNOWLEDGE OF THE PERSON WHO FILED THE SAID AFFIDAVIT. EVEN AT THE TIME OF HEARING OF THE REFER ENCE APPLICATION BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT, THE DEPARTMENT FAILED TO FILE THE AFFIDAVIT OF THE CONCERN PERSON AND KEEPING IN VIEW THIS COND UCT OF THE DEPARTMENT IN NOT FILING THE APPEAL AND IN NOT PRODUCING THE RELEVANT RECORD IN SPITE OF SEEKING TIME, THE HONBLE PUNJAB & HARYANA HIGH COURT UPHELD THE ORDER OF THE TRIBUNAL REFUSING TO CONDONE THE DELAY OF 5 DAYS IN FILING T HE APPEAL. THE FACTS INVOLVED IN THE PRESENT CASE, HOWEVER, ARE ENTIRELY DIFFERENT I NASMUCH AS NOT ONLY THE SUFFICIENT CAUSE FOR THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(APPEALS) HAS BEEN EXPLAINED BY THE ASSESSEE, BUT EVEN THE AFFIDAVIT O F THE CHARTERED ACCOUNTANT TO WHOM THE SAID DELAY IS ATTRIBUTABLE HAS BEEN FILED BY THE ASSESSEE WHEREIN HE HAS 8 ITA NO.2837/MUM/2010 ASSTT. YEAR : 2004-05. CLEARLY ACCEPTED HIS MISTAKE. AS SUCH, CONSIDERING ALL THE FACTS OF THE PRESENT C ASE AND KEEPING IN VIEW THE LEGISLATIVE SPIRIT PROPOUND ED BY THE HONBLE SUPREME COURT IN THE AFORESAID JUDGMENTS, WE ARE OF THE CON SIDERED OPINION THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE LEARNED CIT(A) AND IT IS A FIT CASE FOR EXERCISING THE DISC RETION OF CONDONING THE SAID DELAY. IN THAT VIEW OF THE MATTER, WE DIRECT THE LEARNED C IT(A) TO CONDONE THE DELAY IN FILING THE APPEAL BY THE ASSESSEE BEFORE HIM AND DI SPOSE OF THE SAID APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED ON THIS 20 TH DAY OF MAY, 2011. SD/- SD/- (ASHA VIJAYRAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 20 TH MAY, 2011. WAKODE COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, D-BENCH. (TRUE COPY) BY ORDER ASSTT. REGI STRAR, ITAT, MUMBAI BEN CHES, MUMB AI.