INDUJA TRADERS P.LTD, MUMBAI V. DCIT CEN CIR 2, MUMBAI

ITA 3291/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8055 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 29-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM KUMAR TIWARIDR
• Assessee Lawyers: NAMRATA KASALE
• Keywords: Search and seizure; Period of limitation; Question of law; Accommodation entries; Condonation of delay
• Section: 143(3); 142(1); 80HHC; 133A; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NOS.3291 & 3292/MUM/2013 ASSESSMENT YEARS: 2008-09 & 2009-10 M/S INDUJA TRADERS PVT. LTD. 203, SIDAT MANSION, BUILDING NO.17/17/A, 2 ND MARINE STREET, MUMBAI-400002 / VS. DCIT, CENTRAL CIRCLE-2, AAYAKAR BHAVAN, 4 TH FLOOR, M.K. ROAD, MUMAI-400020 ( #$% & /ASSESSEE) ( / REVENUE) PAN. NO . AAACI8509D ' & ( / DATE OF HEARING : 11/12/2017 ' & ( / DATE OF ORDER: 11/12/2017 #$% & ! / ASSESSEE BY SHRI VIPUL JOSHI & NAMRATA KASALE ! / REVENUE BY SHRI RAM KUMAR TIWARI-DR ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDERS BOTH DATED 24/06/2011, OF THE LD. F IRST APPELLATE AUTHORITY, MUMBAI, ON THE GROUNDS STATED IN THE GROUNDS OF APPEAL. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI VIPUL JOSHI, LD. COUNSEL FOR THE ASSESSEE CON TENDED THAT THERE IS DELAY OF 609 DAYS IN FILING THE APPEAL BEF ORE THIS TRIBUNAL BY CONTENDING THAT THE EARLIER TAX CONSULT ANT RECEIVED THE COPY OF ORDERS FROM THE OFFICE OF THE FIRST APPELLATE AUTHORITY IN JULY, 2011 AND DID NOT HAND OVER THE ORDERS TO THE ASSESSEE WHICH CAUSED THE DELAY. IT W AS ALSO CONTENDED THAT THE ORDERS WERE PASSED ON 24/06/2011 . PLEA WAS ALSO RAISED THAT WHEN THE PROCEEDINGS FOR ASSES SMENT YEAR 2010-11 WERE GOING ON AT THAT TIME THE LD. ASS ESSING OFFICER INFORMED THE ASSESSEE. THE BENCH ASKED THE LD. COUNSEL WHETHER HE CAN PRODUCE THE EARLIER TAX CONS ULTANT OR TO FILE AN AFFIDAVIT EVIDENCING THAT IN FACT THE OR DERS WERE RECEIVED BY HIM AND WERE NOT TOLD TO THE ASSESSEE. THE LD. COUNSEL CONTENDED THAT NEITHER HE CAN PRODUCE NOR F ILE AN ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 3 AFFIDAVIT. THE BENCH AGAIN ASKED THE LD. COUNSEL FO R THE ASSESSEE WHETHER YOU CAN PRODUCE ANY EVIDENCE TO SH OW THAT THE ORDERS WERE IN FACT RECEIVED BY THE EARLIER TAX CONSULTANT. THE LD. COUNSEL STATED THAT NO SUCH EVIDENCE CAN BE FILED. THE ASSESSEE HAS ALSO FILED CERTAIN CASE LAWS IN IT S FAVOUR, WHICH ARE KEPT ON RECORD. ON THE OTHER HAND, THE LD. DR, SHRI RAM KUMAR TIWARI, CONTENDED THAT THE ASSESSEE WAS CONTESTING THE PENALTY PROCEEDINGS BEFORE THE DEPAR TMENT, THEREFORE, HE WAS VERY MUCH AWARE THAT QUANTUM PROC EEDING HAS BEEN DECIDED AGAINST THE ASSESSEE AND EVEN IN F ORM NO.36, THE DATE OF ORDER RECEIVED BY THE ASSESSEE H AS BEEN MENTIONED AS 30/06/2011, THEREFORE, THERE IS NO BON A-FIDE REASON FOR CONDONING THE DELAY AS THE ASSESSEE HAS TO EXPLAIN THE DELAY OF EACH DAY. THE LD. DR HAS ALSO FILED WR ITTEN SUBMISSION DESCRIBING THE MODUS OPERANDI OF THE ASSESSEE AND THE CREDIBLE ENQUIRY MADE BY SALES TAX DEPARTME NT ALONG WITH THE INFORMATION AVAILABLE WITH THE INCOM E TAX DEPARTMENT FOR INITIATION OF SUITABLE ACTION. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 4 AND EXPORT OF VARIOUS ITEMS. A SEARCH AND SEIZURE A CTION U/S 132(1) WAS CARRIED OUT IN NILKAMA GROUP ON 18/12/20 08 AND CONSEQUENTLY, SURVEY ACTION 133A OF THE ACT WAS CAR RIED OUT UPON THE ASSESSEE ON 22/12/2008. ACCORDINGLY, NOTI CE U/S 148 OF THE ACT WAS ISSUED/SERVED ON 04/06/2010, MENTIONING THE REASONS. THE ASSESSEE WAS DULY GIVEN THE COPY OF RECORDED REASONS TO REOPEN THE CASE. IN REP LY, THE ASSESSEE STATED THAT THE INCOME DECLARED ON 30/12/2 008, IN THE RETURN AMOUNTING TO RS.48,09,660/- MAY BE TREAT ED AS RETURN FILED IN RESPONSE TO THE NOTICE U/S 148 OF T HE ACT, THEREAFTER NOTICES U/S 143(2) (24/06/2010) AND NOTI CE U/S 142(1) ALONG WITH QUESTIONNAIRE WERE ISSUED ON 24/0 6/2010 AND SERVED UPON THE ASSESSEE. IN RESPONSE TO THE SA ME, SHRI SHASHI KUMAR AGARWAL, CA, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, ATTENDED THE PROCEEDING FROM TIME TO TIME AND FURNISH THE DETAILS AS IS EVIDENT FROM PARA-4 ONWAR DS OF THE ASSESSMENT ORDER DATED 28/02/2011. THE STATEMENT O F SHRI JITENDRA B SALECHA, DIRECTOR OF M/S INDUJA TRADERS PVT. LTD. WAS RECORDED ON 22/12/2008, WHEREIN, HE ACCEPTED, B EING INVOLVED IN PROVIDING ACCOMMODATION ENTRIES. THE RE LEVANT PORTION OF THE STATEMENT HAS BEEN REPRODUCED IN THE ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 5 ASSESSMENT ORDER ALSO. MR. SALECHA CLEARLY ELABORAT ED THE MODUS OPERANDI ADOPTED BY THE ASSESSEE COMPANY FOR PROVIDING BOGUS BILLS ON COMMISSION BASIS. SHOW CA USE NOTICE WAS ALSO ISSUED, WHICH WAS REPLIED VIDE DATE D 02/02/2011, THE CONTENTS OF WHICH ARE ALSO REPRODUC ED IN THE ASSESSMENT ORDER. CONSIDERING THE TOTALITY OF F ACTS, THE ADDITION WAS MADE. 2.2. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCO ME TAX (APPEAL), THE FACTUAL MATRIX WAS CONSIDERED AND ONE SHRI J.P. PUROHIT, TAX CONSULTANT DULY ATTENDED THE PROC EEDINGS AND FINALLY VIDE ORDER DATED 24/06/2011, THE LD. FI RST APPELLATE AUTHORITY PASSED THE ORDER, WHICH IS UNDE R CHALLENGED BEFORE THIS TRIBUNAL AFTER A LAPSE OF 60 9 DAYS. 2.3. BEFORE THIS TRIBUNAL, THE ASSESSEE MOVED APPLICATION FOR CONDONATION OF DELAY, SUPPORTED BY AN AFFIDAVIT DULY SWORN BY DIRECTORS OF THE ASSESSEE C OMPANY. 2.4. WE FIND THAT THE ASSESSMENT ORDER WAS PASSED ON 28/02/2011, WHEREIN, SHRI SHASHI KUMAR AGAREWAL, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE NECESSARY DETAILS. BEFOR E THE LD. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 6 COMMISSIONER OF INCOME TAX (APPEAL), ONE SHRI J.P. PUROHIT, CONSULTANT ATTENDED THE PROCEEDINGS AND THE ORDER W AS PASSED ON 24/06/2011. IT IS NOTED THAT IN PENALTY PROCEEDINGS, WHICH ARE OFFSHOOT OF QUANTUM PROCEEDI NGS, THE ASSESSEE DULY CONTESTED THE SAME AS IS EVIDENT FROM RECORD. THE NECESSARY PARA FROM THE PENALTY ORDER IS REPROD UCED HEREUNDER FOR READY REFERENCE AND ANALYSIS:- 2.3. ON THE BASIS OF ABOVE OBSERVATION AND ASSESSEES OWN ADMISSION, THE ASSESSING OFFICER HEL D IN THE ASSESSMENT ORDER THAT ASSESSEE IS INVOLVED IN THE A CTIVITY OF ISSUING ACCOMMODATION BILLS ONLY AND THEREFORE BOOK S ACCOUNT WERE REJECTED U/S 145(3) OF THE I.T. ACT, 1961, AS THE ASSESSING OFFICER WAS NOT SATISFIED ABOUT THE CORRECTNESS AND COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE. THERE FORE, CONSIDERATION RECEIVED FOR PROVIDING SUCH ACCOMMODA TION BILLS/ENTRIES WAS ESTIMATED AT .075% OF THE TOTAL T URNOVER OF THE ASSESSEE AND ADDITION OF RS.45,32,534/- WAS MADE TO THE TOTAL INCOME ON THIS ACCOUNT. 3. PENALTY PROCEEDINGS WERE SEPARATELY INITIATED WI TH THE ASSESSMENT ORDER AND THE NOTICE U/S 271(1)(C) OF TH E I.T. ACT DATED 28/02/2011 WAS ISSUED TO THE ASSESSEE. THE AS SESSEE FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THE LD. COMMISSIONER OF INCOME TAX (APPEA L) PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE ESTIMATING THE INCOME AT 0.5% OF THE TURNOVER. THE DECISION OF THE LD. CO MMISSIONER OF INCOME TAX (APPEAL) HAS BEEN ACCEPTED BY THE ASS ESSEE AS WELL AS DEPARTMENT AND NO FURTHER APPEAL HAS BEEN F ILED. THEREAFTER, FINAL SHOW CAUSES NOTICE DATED 18/02/20 13 WAS ISSUED AND DULY SERVED ON THE ASSESSEE FOR COMPLIAN CE. 4. IN RESPONSE TO THE SAID NOTICES, THE ASSESSEE FI LED ITS REPLY VIDE LETTER DATED 04/02/2013 WHEREIN IT WAS STATED THAT THE ASSESSEE HAD NOT CONCEALED ANY PARTICULARS OF ITS I NCOME AND ADDITION MADE IN THE ASSESSMENT ORDER ONLY ARISE DU E TO ESTIMATION OF INCOME @0.5% OF TOTAL TURNOVER AND ON LY ON THE BASIS OF SURVEY STATEMENT. THE ASSESSEE FURTHER REL IES ON VARIOUS CASES LAWS TO CONTEND THAT THERE HAS TO BE AN ELEMENT OF MENSREA FOR LEVY OF PENALTY. IT WAS ALSO CONTE NDED BY THE ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 7 ASSESSEE THAT PENALTY IS NOT LEVIABLE ON THE ESTIMA TION OF INCOME. 2.5. THE AFORESAID ORDER U/S 271(1)(C) OF THE ACT IS DATED 18/03/2013 AND BEFORE THAT DATE, IT WAS STRON GLY CONTESTED BY THE ASSESSEE, MEANING THEREBY THE ASSE SSEE WAS VERY MUCH AWARE ABOUT THE OUTCOME OF THE ORDER OF T HE LD. FIRST APPELLATE AUTHORITY AS THE PENALTY IS OFFSHOO T OF QUANTUM PROCEEDINGS ONLY. BEFORE US, NO EVIDENCE H AS BEEN PRODUCED BY THE ASSESSEE THAT THE ORDER DATED 24/06 /2011, FROM THE OFFICE OF THE FIRST APPELLATE AUTHORITY RE MAINED WITH THE TAX CONSULTANT AND NO APPEAL WAS FILED. IT SEE MS TO BE A CLEAR CONSCIOUS DECISION OF THE ASSESSEE ITSELF. E VEN DURING BEFORE THIS TRIBUNAL (AS MENTIONED EARLIER), THE LD . COUNSEL FOR THE ASSESSEE WAS SPECIFICALLY ASKED WHETHER THERE I S EVIDENCE (I) WHETHER THERE IS ANY EVIDENCE THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS RECEIVED BY THE TAX CONSULTANT, (II) WHETHER THE ASSESSEE CAN PRODUCED THE TAX CONSULTANT TO VERIFY THE CLAIM OF THE ASSESSEE (III) WHETHER THE ASSESSEE CAN FILE AN AFFIDAVIT TH AT IN FACT THE ORDER WAS RECEIVED BY THE TAX CONSULTAN T ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 8 AND THE ASSESSEE WAS NOT INFORMED BY HIM OF SUCH ORDER THE LD. COUNSEL NEITHER PRODUCED ANY EVIDENCE AND SPECIFICALLY CONTENDED THAT NEITHER THE TAX CONSULT ANT CAN BE PRODUCED NOR ANY AFFIDAVIT FROM HIM. IN SUCH AS SI TUATION, WHEN THE ASSESSEE WAS ACTIVELY CONTESTING THE PENAL TY PROCEEDINGS, THERE IS NO REASON/EVIDENCE, THAT HE W AS NOT AWARE ABOUT THE QUANTUM PROCEEDINGS AS THE PENALTY PROCEEDS ARE OFFSHOOT OF QUANTUM PROCEEDINGS ONLY. 2.6. NOW, QUESTION ARISES, WHETHER THERE IS BONA-F IDE REASON OF DELAY. BEFORE US, AS MENTIONED EARLIER, T HE ASSESSEE DID NOT PRODUCE ANY EVIDENCE TO SUBSTANTIATE ITS CL AIM MENTIONED IN THE APPLICATION/AFFIDAVIT. IT WAS THE DUTY OF THE ASSESSEE TO EXPLAIN THE DELAY OF EACH DAY. AS MENT IONED EARLIER, THE ASSESSEE WAS DULY ATTENDING THE PENALT Y PROCEEDINGS DURING THE PERIOD AND THE APPEAL BEFORE THIS TRIBUNAL WAS FILED ON 29/04/2013. IT IS PURELY THE CASUAL APPROACH OF THE ASSESSEE OR IT CAN BE SAID THAT IT WAS CONSCIOUS DECISION OF THE ASSESSEE TO NOT TO FILE A PPEAL DURING THE PERIOD AND LATER ON AS ADVISED BY ANOTHER COUNS EL AGAIN A ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 9 CONSCIOUS DECISION WAS TAKEN AND APPEAL WAS FILED L ATE BY 609 DAYS. IN SUCH AS SITUATION, THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF B.S. INTERNAT IONAL (ITA NO.4683/MUM/2012), ORDER DATED 26/10/2015 & M/S ORI ON ENTERPRISES (ITA NO.7387/MUM/2014) COMES TO SHELTER THE REVENUE. THE RELEVANT PORTION FROM THE ORDER OF B.S . INTERNATIONAL IS REPRODUCED HEREUNDER FOR READY REF ERENCE:- THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 13/12/2007 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, CONFIRMING THE CLAIMED DEDUCTION U/S 80HHC OF THE I NCOME TAX ACT, 1961 ON DEPB BENEFITS AMOUNTING TO RS.1,63,48, 487/- WITHOUT APPRECIATING THE FACTS. 2. DURING HEARING THIS APPEAL, WE HAVE HEARD SHRI K. GOPAL ALONG WITH SHRI JITENDRA SING AND NEHA PARANJ APE, LD. COUNSEL FOR THE ASSESSEE, AND SHRI VINOD KUMAR, LD. DR. AT THE OUTSET, THE LD. DR, POINTED OUT THAT THIS APPEAL IS TIME BARRED BY 1625 DAYS. THE LD. COUNSEL FOR THE ASSESSEE INV ITED OUR ATTENTION TO THE APPLICATION DATED 10/12/2012, FILE D BY THE ASSESSEE, FOR CONDONING THE DELAY ALONG WITH AN AFF IDAVIT FILED BY THE MANAGING PARTNER OF THE ASSESSEE FIRM. THE CONTENTION OF THE ASSESSEE IS THAT THERE IS SUFFICIENT REASON FOR THE DELAY WHICH MAY BE CONDONED. HOWEVER, THE LD. DR, STRONG LY OPPOSED THE DELAY BY CONTENDING THAT THERE IS NO RE ASONABLE CAUSE FOR HUGE DELAY, THEREFORE, MAY NOT BE CONDONE D. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE US , THE LD. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 10 COUNSEL FOR THE ASSESSEE PLACE RELIANCE UPON THE DE CISION FROM HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION V S KATAJI 167 ITR 471, (SC), L. BALKRISHNAN VS M. KRISHNAMURTHY, (1998) 7 SCC 123 AND VASUE & COMPANY VS STATE OF KERALA (200 1) 124 STC 124 (KERALA.) WE HAVE PERUSED THE REASONS MENT IONED BY THE ASSESSEE IN ITS APPLICATION FOR CONDONOTION OF DELAY ALONG WITH THE CITED CASES. WE FIND THAT THE ASSESSEE DEC LARED TOTAL INCOME OF RS.1,03,18,355/- ON 24/10/2003 AND THE ASSESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS PASSED ON 27/02/2006 DISA LLOWING THE CLAIMED DEDUCTION U/S 80HHC OF THE ACT ON THE EXPOR T INCENTIVES OF DEPB. 2.2. THE ASSESSEE FELT AGGRIEVED AND FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY ON 10/04/2006, WH EREIN, THE APPEAL OF THE ASSESSEE WAS DISPOSED OFF ON 13/12/20 07 GRANTING PART RELIEF TO THE ASSESSEE AND DISALLOWIN G THE CLAIMED DEDUCTION U/S 80HHC OF THE ACT ON DEPB BENEFITS. 2.3. AGAINST THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY, THE ASSESSEE FILED APPEAL ON 25/05/2012, WHICH RESULTED INTO DELAY OF 1625 DAYS. THE ASSESSEE RELIED UPON THE OBSERVATION OF THE HONBLE APEX COURT IN THE CA SE 167 ITR 471(SC) COLLECTOR, LAND ACQUISITION VS KATI JI. WE FIND THAT THE HONBLE APEX COURT HELD AS UNDER:- WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON- DELIBERATE DELAY. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 11 THE ASSESSEE ALSO PLACED RELIANCE UPON THE FOLLOWING OBSERVATIONS OF THE APEX COURT IN THE CAS E OF L. BALKRISHANAN. VS. M. KRISHNAMURTHY (1998) 7 SCC 123. 'THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUST ICE. THE TIME-LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAU SE WOULD TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITATION AR E NOT MEANT TO DESTROY THE RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CAUSED BY REASON OF LEGAL INJURY. THE LAW OF LIMITATION FIXES A LIFESPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATION IS THUS F OUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPU BLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO D ESTROY THE RIGHTS OF THE PARTIES. THEY ARE MEANT TO SEE THAT P ARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PR OMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. FURTHER RELIANCE WAS PLACED UPON THE DECISION AND OBSERVATION MADE THEREIN BY THE HONBLE KERALA HIGH COURT IN THE CASE OF VASU & CO. VS. STATE OF KERALA (2001) 124 STC 124 (KER.). 'WE ARE OF THE VIEW THAT IT IS NOT NECESSARY IN ALL CASES TO GIVE EVIDENCE REGARDING THE DELAY IN FILING APPEALS. THE AFFIDAVITS ARE DOCUMENTS OF EVIDENCE. ON THE BASIS OF THE AFFIDAVI TS, IF THE COURT IS SATISFIED THAT SUFFICIENT EXPLANATION HAS BEEN GIVEN FOR CONDONING DELAY, THEN THE AFFIDAVIT CAN BE ACCEPTED AS EVIDENCE. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 12 IF PROOF OF WHAT IS STATED IN THE AFFIDAVIT IS INSI STED ON, THAT WILL PROLONG THE LITIGATION. HERE IS A CASE WHERE THE AS SESSEE. IS AGGRIEVED BY THE ORDERS OF THE ASSESSING AUTHORITIE S. ACCORDING TO HIM, HE HAS BEEN DIRECTED TO PAY TAX WHICH HE WA S NOT BOUND TO PAY AND ON THE GROUND OF DELAY THE TRIBUNAL HAS SHUT THE DOORS AGAINST HIM. OF COURSE, IF THE PETITIONER HAD BEEN NEGLIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME T O HIS SUCCOUR. HERE, WE FIND SOME TRUTH IN WHAT THE PETIT IONER HAD STATED IN SO FAR AS HE HAS APPROACHED THIS COURT BY FILING ORIGINAL PETITION. IT WOULD HAVE BEEN BETTER, IF SO ME EVIDENCE WAS GIVEN REGARDING HIS CASE THAT THE PARTICULAR AD VOCATE DID NOT FILE APPEALS. BUT THE COURT CAN TAKE JUDICIAL N OTICE OF THE DIFFICULTY IN GETTING SUCH AFFIDAVITS'. 2.4. IN THE LIGHT OF THE OBSERVATIONS MADE BY THE HONBLE COURTS, WE ARE EXPECTED TO ANALYZE THE FACT S AND THE REASONS OF DELAY IN FILING THE APPEAL BEFORE THIS T RIBUNAL. IN THE AFFIDAVIT OF THE ASSESSEE, FILED BEFORE THIS TRIBUN AL, WE NOTE THAT EVEN THE ASSESSEE ITSELF HAS ADMITTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DISPOSED OFF THIS APPEAL VI DE ORDER DATED 13/12/2007 AND THE ORDER WAS RECEIVED BY THE REPRESENTATIVE OF THE ASSESSEE, WHO KEPT THE ORDER IN THE DRAWER AND THEREAFTER THE ASSESSEE MET WITH AN ACCIDENT AN D COULD NOT ATTEND THE OFFICE. THE APPEAL WAS FILED BY THE ASSE SSEE ON 25/05/2012, WHICH RESULTED INTO DELAY OF 1625 DAYS. IN THE APPLICATION OF THE ASSESSEE (IN PARA-3), IT HAS BEE N MENTIONED THAT THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY WAS RECEIVED BY THE OFFICE ASSISTANT, WHEREAS, IN THE AFFIDAVIT, THE ORDER WAS CLAIMED TO BE RECEIVED BY THE PEON OF THE FIRM, THE REFORE, THE CLAIM OF THE ASSESSEE IS ITSELF CONTRADICTORY. FU RTHER, THE ASSESSEE MET WITH AN ACCIDENT ON 30/07/2010, WHEREA S, THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY IS DATED 13/12/2007, THUS, THE CLAIM OF THE ASSESSEE THAT HE COULD NOT F ILE BEFORE THE ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 13 TRIBUNAL, DUE TO ACCIDENT IS MERELY FOR ARGUMENT SA KE AND THE ASSESSEE WAS HAVING SUFFICIENT TIME TO FILE THE APP EAL. IT IS ALSO NOTED THAT THE ASSESSEE WAS ATTENDING OTHER APPEALS AND ONLY WHEN THE RECOVERY NOTICE WAS SENT TO THE ASSESSEE B Y THE DEPARTMENT, THE ASSESSEE TOOK A DECISION TO FILE TH E APPEAL. IT IS ALSO NOTED THAT EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS BEFORE THE LD. ASSESSING O FFICER, THE ASSESSEE WAS REPRESENTED BY AUTHORIZED REPRESENTATI VE, MEANING THEREBY, THE ASSESSEE WAS WELL EQUIPPED WIT H THE ADVICE OF THE LEGAL REPRESENTATIVES AND EVEN OTHERW ISE, THE APPEAL WAS TO BE PREPARED/FILED BY THE REPRESENTATI VES AND NOT BY THE ASSESSEE. IT IS NOT THE CASE THAT THE ASSES SEE WAS NOT IN A POSITION TO EVEN SIGN THE DOCUMENTS/APPEAL MEMO. IT WAS CLEARLY A CASE OF CONSCIOUS DECISION NOT TO FILE TH E APPEAL AT EARLY STAGE AND TO FILE THE APPEAL AT THE LATER STA GE. THE ASSESSEE WAS HAVING SUFFICIENT TIME AND WAS NOT PRE VENTED BY ANY SUFFICIENT CAUSE. IT IS NOT A CASE OF SMALL DE LAY RATHER DELAY OF 1625 DAYS ( FOUR YEAR AND FORTY FIVE DAYS). BROA DLY, WE ARE OF THE VIEW, THAT SUCH A HUGE DELAY THAT TOO IN THE AB SENCE OF PLAUSIBLE REASONING, SHOULD NOT BE CONDONED. THE AS SESSEE HAS NOT EXPLAINED PROPERLY THE REASON OF DELAY, WHICH T HE ASSESSEE, OTHERWISE, EXPECTED TO ADDUCE THE DELAY WITH DOCUME NTARY EVIDENCE. THIS IS A CLEAR CUT CASE OF DELIBERATE D ELAY OR CONSCIOUSLY FILING THE DELAY AFTER SUCH A LONG TIME . AS PER PROVISION OF SECTION 253(3), (3)A OF THE ACT, THE A SSESSEE IS TO FILE THE APPEAL WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY, WHEREAS, THE ASSESSEE FILED THE APPEAL AFTER 1625 DAYS, WHICH IS EVEN BEYOND IM AGINATION, ESPECIALLY WHEN, THE ASSESSEE HAS NOT EXPLAINED THE REASON OF DELAY. WE ARE AWARE THAT THE PRIMARY FUNCTION OF TH E COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES AND TO A DVANCE SUBSTANTIAL JUSTICE. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME BUT AT THE SAME ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 14 TIME IT IS EQUALLY IMPORTANT TO NOTE WHETHER THE AS SESSEE HAS DULY EXPLAINED THE REASON OF DELAY. THE HONBLE CO URT IN VASU & COMPANY VS STATE OF KERALA HAS CLEARLY MENTIONED THAT IF THE PETITIONER IS NEGLIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME TO HIS RESCUE. THIS IS EXACTLY THE CASE BEFORE US. THE LAW OF LIMITATION FIXES A LIFE SPAN FOR SUCH LEGAL REMEDIE S FOR THE REDRESSAL OF A LEGAL INJURY, IF ANY, SUFFERED BY TH E ASSESSEE. HOWEVER, IN THE PRESENT APPEAL, THERE IS A CLEAR CU T CONSCIOUS DELAY OF 1625 DAYS, WHICH, IN OUR VIEW, IF CONDONED , UNDER THE FACTS AVAILABLE ON RECORD, THEN THERE IS NO NEED TO KEEP THE PROVISION UNDER THE LIMITATION ACT. EVEN THE HONB LE APEX COURT IN COLLECTOR, LAND ACQUISITION VS KATIJI (SUP RA) HAS CLEARLY MENTIONED ABOUT NON-DELIBERATE DELAY. THUS, IN OUR HUMBLE OPINION, THE CASES RELIED BY THE ASSESSEE CANNOT CO ME TO THE RESCUE OF THE ASSESSEE, BECAUSE THE ASSESSEE HAS N OT ADDUCED ANY EVIDENCE/REASON, SUBSTANTIATING THAT THE DELAY WAS CAUSED DUE TO THE REASONS WHICH WERE BEYOND HIS/ITS CONTRO L AND AT THE SAME TIME, THE REASONS WERE GOOD AND SUFFICEIN T, RATHER, IT IS A CLEAR CUT CASE OF CONSCIOUS DECISION. EVEN, THE HONBLE APEX COURT IN VEDABAI ALIAS VAIJ AYANATABAI BABURAO VS SHANTARMA BAVURAO PATIL REPORTED IN (200 2) 253 ITR 798 (SC) MADE A DISTINCTION IN DELAY AND INORDI NATE DELAY OBSERVED (PAGE 799) AS UNDER:- IN EXERCISING DISCRETION U/S 5 OF THE LIMITATION A CT, THE COURT SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE M ADE BETWEEN A CASE, WHERE THE DELAY IS INORDINATE AND A CASE WHER E THE DELAY IS OF A FEW DAYS. WHEREAS, IN THE FORMER CASE, THE CONSIDER ATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR, SO THE CASE CALLS FOR MORE CAUTIOUS APPROACH. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 15 IN BRIJ INDER SINGH VS KASHIRAM (AIR) 1917 PC 156 OBSERVED THAT TRUE GUIDE FOR A COURT TO EXERCISE TH E DISCRETION U/S 5 OF THE LIMITATION ACT IS WHETHER THE APPELLAN T ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. IF THE TOTALITY OF FACTS, AVAILABLE ON RECORD, ARE JUDICIOUSLY EXAMINE D THEN IT CAN BE SAID THAT THE PROVISIONS RELATING TO PRESCRIPTIO N OF LIMITATION IN EVERY STATUTE MUST NOT BE CONSTRUED SO LIBERALLY THAT IT WOULD HAVE THE EFFECT OF TAKING AWAY THE BENEFIT ACCRUING TO THE OTHER PARTY IN A MECHANICAL MANNER. WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CO NDONE THE DELAY AS WELL, THERE SUCH DELAY CAN BE CONDONED ONL Y FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT A ND PROPER EVIDENCE. NOW, IT IS A SETTLED PRINCIPLE OF LAW THA T THE PROVISIONS RELATING TO SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. IN THIS RE GARD, REFERENCE CAN BE MADE TO THE LATEST DECISION IN THE CASE OF P. K. RAMACHANDRAN V. STATE OF KERALA, AIR 1998 SC 2276. THE RELEVANT PORTION READS AS UNDER (PAGE 2277):- LAW OF LIMITATION MAY HARSHLY AFFECT A PARTICULAR PARTY BUT IT HAS TO BE APPLIED WITH ALL ITS RIGOUR WHEN THE STATUTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND THE PERIOD OF LIMITA TION ON EQUITABLE GROUNDS. THE DISCRETION EXERCISED BY THE HIGH COURT , WAS, THUS, NEITHER PROPER NOR JUDICIOUS. THE ORDER CONDONING T HE DELAY CANNOT BE SUSTAINED. THIS APPEAL, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY, THE APPLICATION F OR CONDONATION OF DELAY FILED IN THE HIGH COURT WOULD STAND REJECTED AND THE MISCELLANEOUS FIRST APPEAL SHALL STAND DISMISSED AS BARRED BY TIME. NO COSTS. XXXXXXXXXXXXX ONCE THE CONCERNED AUTHORITY APPLIES ITS MIND AND DECLINES TO CONDONE THE DELAY IN FILING THE APPEAL FOR GOOD AND APPROPRIATE ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 16 REASONS, IN THAT EVENT IT CANNOT GIVE RISE TO A QUE STION OF LAW FOR DETERMINATION. THE SUPREME COURT OF INDIA IN THE CASE OF ORIENTAL INVESTMENT CO. LTD. V. CIT [1957] 32 ITR 664, 675 ; AIR 1957 SC 852, HELD AS UNDER (857 OF AIR 1957 SC) : A FINDING ON A QUESTION OF FACT IS OPEN TO ATTACK UNDER SECTION 66(1) AS ERRONEOUS IN LAW IF THERE IS NO EVIDENCE TO SUPPORT IT OR IF IT IS PERVERSE. A FULL BENCH OF THE ORISSA HIGH COURT, IN THE CASE OF BRAJABANDHU NANDA V. CIT [1962] 44 ITR 668, CONSIDE RING SOMEWHAT SIMILAR QUESTION, WHERE THE APPEAL WAS BAR RED BY TIME AND REFERENCE OF THE QUESTION WAS DECLINED, HE LD AS UNDER (HEADNOTE) : THAT THE QUESTIONS REFERRED WERE NOT QUESTIONS OF LAW BUT QUESTIONS OF FACT SINCE IT WAS A MATTER OF DISCRETION FOR THE TRIBUNAL TO CONDONE DELAY FOR SUFFICIENT CAUSE ON THE FACTS AND CIRCUMS TANCES OF EACH CASE. THE CONSISTENT VIEW IS THAT SUCH QUESTION WOULD BE A QUESTION OF FACT SIMPLICITER AND WOULD NOT BE COVERED UNDER THE PROV ISIONS OF SECTION 256 OF THE ACT UNLESS SUCH EXERCISE OF DISCRETION O R CONCLUSION ARRIVED AT WAS PERVERSE OR SO ILLOGICAL THAT NO REASONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HAVE EXERCISE D THEIR DISCRETION AND WE FIND NOTHING PERVERSE IN THE IMPUGNED ORDERS . SPECIFIC REASONS HAVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT EVEN REFLECT THE CONDUCT OF THE APPELLANT BEFORE TH E AUTHORITIES IN NOT PRODUCING THE RECORD IN SPITE OF SEEKING TIME. THE AUTHORITIES WHICH ARE EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 17 AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTR OVERSY A QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE A UTHORITY IS IN CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTL Y A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE NOT ABLE TO APPRECIATE THE CONTE NTION OF LEARNED COUNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS AP PLIED WRONG PRINCIPLES OF LAW OR THAT IT HAS RELIED UPON INCORR ECT PRINCIPLES OF LAW REGULATING THE CONTROVERSY IN ISSUE (REFER [1976] 1 05 ITR 133). WE ARE ALSO NOT IN A POSITION TO AGREE WITH THE CON TENTION RAISED ON BEHALF OF THE PETITIONER THAT THE AFORE-GIVEN THREE REASONS AMOUNT TO PALPABLY ERRONEOUS ERROR OF LAW IN EXERCISE OF DISC RETION BY THE AUTHORITIES CONCERNED. ON THE CONTRARY, WE HAVE ALR EADY HELD THAT THE REASONS STATED FOR DECLINING THE REFERENCE ARE WELL IN CONSONANCE WITH THE SETTLED CANNONS OF LAW GOVERNING THE SUBJECT. HAVING COGITATED OVER THE MATTER AND FOR THE REASON S AFORESTATED, WE DO NOT FIND ANY ERROR OF JURISDICTION OR OTHERWISE IN THE IMPUGNED ORDER. WE ARE CONSTRAINED TO HOLD THAT THE VIEW OF THE TRIBUNAL IN DECLINING THE REFERENCE TO THIS COURT IS FULLY JUST IFIED AND THUS, WE DECLINE TO ISSUE ANY DIRECTION TO THE INCOME-TAX AP PELLATE TRIBUNAL, AMRITSAR, TO STATE AND REFER THE AFORESAID QUESTION , AS QUESTION OF LAW, TO THIS COURT IN EXERCISE OF ITS POWER UNDER SECTIO N 256 OF THE ACT. WITH THE ABOVE OBSERVATIONS, THIS PETITION IS DISMI SSED. OUR VIEW IS FORTIFIED BY THE DECISION FROM HONBL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS RAM MOHAN KABRA (2002) 257 ITR 773 (P& H). THE TOTALITY OF FACTS, CLEARLY INDICATES THAT THE ASSESSEE TOOK A CONSCIOUS DECISI ON FIRSTLY, NOT TO FILE THE APPEAL AGAINST THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND THEREAFTER TOOK A DECISION TO FILE TH E APPEAL. IT IS NOT THE CASE OF DELAY WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. SO FAR AS, THE AFFIDAVIT IS CONCERNED, I T IS A SELF ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 18 SERVING DOCUMENT AND THE ASSESSEE HAS NOT EXPLAINED SATISFACTORILY THE REASON OF DELAY IN FILING THE AP PEAL. THE ASSESSEE WAS WILFULLY NEGLIGENT OR IRRESPONSIBLE IN TAKING A DECISION, THUS, THE HUGE DELAY CANNOT BE CONDONED. WE ARE CONSCIOUS OF THE FACT THAT TECHNICALITIES SHOULD NO T COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE BUT IN CASES, W HERE THE DELAY WAS BEYOND THE CONTROL OF THE ASSESSEE OR SOM E GENUINE DIFFICULTIES HINDERED HIS SMOOTH WAY. AS DISCUSSED EARLIER, IT IS CLEAR CUT CASE OF CONSCIOUS DECISION, THUS, WE FIND NO MERIT IN THE SELF MADE STORY OF THE ASSESSEE, THEREFORE, ON THIS ISSUE, WE ARE NOT AGREEING WITH THE ADMISSION OF THIS APPEAL, THUS, THE DELAY IS NOT CONDONED, THEREFORE, THE APPEAL IS DIS MISSED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED AS NOT ADMITTED. 2.7. WE NOTE THAT IN THE AFORESAID ORDER, THE BENC H HAS DISCUSSED VARIOUS JUDICIAL PRONOUNCEMENTS, ALONG WI TH THE PROVISIONS OF LIMITATION ACT. HOWEVER, IN THE PRE SENT APPEAL, BEFORE US, THE ASSESSEE NEITHER PRODUCED ANY EVIDEN CE ESTABLISHING THAT THE ORDER OF THE FIRST APPELLATE AUTHORITY WAS IN FACT RECEIVED BY THE TAX CONSULTANT AND FURT HER IT WAS NOT COMMUNICATED TO THE ASSESSEE, MORE SPECIFICALLY WHEN THE ASSESSEE WAS DULY CONTESTING THE PENALTY PROCEE DINGS, WHICH WERE OFFSHOOT OF THE SAME QUANTUM PROCEEDINGS . IN SUCH A SITUATION, THE CASES RELIED UPON BY THE ASSE SSEE MAY NOT OF MUCH HELP, BECAUSE EXERCISING THE BENEFIT OF SUCH ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 19 JUDICIAL DECISIONS, THE ASSESSEE HAS TO EXPLAIN ITS BONA FIDE REASONS OF NOT FILING THE APPEAL WITHIN THE STIPULA TED PERIOD. THUS, THE BENEFIT OF SUCH CASES MAY NOT BE EXTENDED OT THE ASSESSEE. WE ARE CONSCIOUS OF THE FACT THAT TECHNIC ALITIES SHOULD NOT COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE BUT IN CASES, WHERE THE DELAY WAS BEYOND THE CONTRO L OF THE ASSESSEE OR SOME GENUINE DIFFICULTIES HINDERED HIS SMOOTH WAY. THE FULL BENCH OF THE ORISSA HIGH COURT, IN TH E CASE OF BRAJABANDHU NANDA V. CIT [1962] 44 ITR 668, CONSIDE RING SOMEWHAT SIMILAR QUESTION, WHERE THE APPEAL WAS BAR RED BY TIME AND REFERENCE OF THE QUESTION WAS DECLINED, HE LD AS UNDER (HEADNOTE) : THAT THE QUESTIONS REFERRED WERE NOT QUESTIONS OF LAW BUT QUESTIONS OF FACT SINCE IT WAS A MATTER OF DISCRETION FOR THE TRIBUNAL TO CONDONE DELAY FOR SUFFICIENT CAUSE ON THE FACTS AND CIRCUMS TANCES OF EACH CASE. THE CONSISTENT VIEW IS THAT SUCH QUESTION WOULD BE A QUESTION OF FACT SIMPLICITER AND WOULD NOT BE COVERED UNDER THE PROV ISIONS OF SECTION 256 OF THE ACT UNLESS SUCH EXERCISE OF DISCRETION O R CONCLUSION ARRIVED AT WAS PERVERSE OR SO ILLOGICAL THAT NO REASONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HAVE EXERCISE D THEIR DISCRETION AND WE FIND NOTHING PERVERSE IN THE IMPUGNED ORDERS . SPECIFIC REASONS HAVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT EVEN REFLECT THE CONDUCT OF THE APPELLANT BEFORE TH E AUTHORITIES IN NOT PRODUCING THE RECORD IN SPITE OF SEEKING TIME. ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 20 THE AUTHORITIES WHICH ARE EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTR OVERSY A QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE A UTHORITY IS IN CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTL Y A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE NOT ABLE TO APPRECIATE THE CONTE NTION OF LEARNED COUNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS AP PLIED WRONG PRINCIPLES OF LAW OR THAT IT HAS RELIED UPON INCORR ECT PRINCIPLES OF LAW REGULATING THE CONTROVERSY IN ISSUE (REFER [1976] 1 05 ITR 133). WE ARE ALSO NOT IN A POSITION TO AGREE WITH THE CON TENTION RAISED ON BEHALF OF THE PETITIONER THAT THE AFORE-GIVEN THREE REASONS AMOUNT TO PALPABLY ERRONEOUS ERROR OF LAW IN EXERCISE OF DISC RETION BY THE AUTHORITIES CONCERNED. ON THE CONTRARY, WE HAVE ALR EADY HELD THAT THE REASONS STATED FOR DECLINING THE REFERENCE ARE WELL IN CONSONANCE WITH THE SETTLED CANNONS OF LAW GOVERNING THE SUBJECT. HAVING COGITATED OVER THE MATTER AND FOR THE REASON S AFORESTATED, WE DO NOT FIND ANY ERROR OF JURISDICTION OR OTHERWISE IN THE IMPUGNED ORDER. WE ARE CONSTRAINED TO HOLD THAT THE VIEW OF THE TRIBUNAL IN DECLINING THE REFERENCE TO THIS COURT IS FULLY JUST IFIED AND THUS, WE DECLINE TO ISSUE ANY DIRECTION TO THE INCOME-TAX AP PELLATE TRIBUNAL, AMRITSAR, TO STATE AND REFER THE AFORESAID QUESTION , AS QUESTION OF LAW, TO THIS COURT IN EXERCISE OF ITS POWER UNDER SECTIO N 256 OF THE ACT. WITH THE ABOVE OBSERVATIONS, THIS PETITION IS DISMI SSED. OUR VIEW IS FORTIFIED BY THE DECISION FROM HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS RAM MOHA N KABRA (2002) 257 ITR 773 (P& H). SO FAR AS, THE DEC ISION FROM ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 21 HONBLE APEX COURT IN THE CASE OF IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS. (CIVIL APPEAL NO.23 95 AND 2397 OF 2008) IS CONCERNED, WE NOTE THAT THE FACTS ARE CLEARLY DISTINGUISHABLE AND THERE WAS DELAY OF ONLY TWO MON THS AND FEW DAYS. IN THE PRESENT APPEAL, THE WILFUL NEGLIG ENCE IS ESTABLISHED, THEREFORE, THE HUGE DELAY CANNOT BE CO NDONED, CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS DISMISS ED AS NOT ADMITTED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF HEARING ON 11/12/2017. SD/- (MANOJ KUMAR AGGARWAL) SD/- (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER MUMBAI; * DATED : 11/12 /2017 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. /0-. / THE RESPONDENT. 3. 1& ( , ) / THE CIT, MUMBAI. 4. 1& / CIT(A)- , MUMBAI, 5. 34/&# , ,(# 5 , / DR, ITAT, MUMBAI ITA NOS.3291 & 3292/MUM/2013 M/S INDUJA TRADERS PVT. LTD. 22 6. 6$7 / GUARD FILE. ! / BY ORDER, 03,&/& //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI