B.S. INTERNATIONAL (BOMBAY), MUMBAI V. JCIT 17(3), MUMBAI

ITA 4683/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93311 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 12-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMARDR
• Assessee Lawyers: JITENDRA SINGH; NEHA PARANJAPE
• Keywords: Period of limitation; Question of law; Reasonable cause; Condonation of delay
• Section: 143(3); 80HHC

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.4683/MUM/2012 ASSESSMENT YEAR:2003-04 B.S. INTERNATIONAL (BOMBAY), 37, BARRISTER NATH PAI MARG, COTTON GREEN, MUMBAI-400033 / VS. JOINT COMMISSIONER OF INCOME TAX-17(3), 6 TH FLOOR, ROOM NO.614, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012 ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. AAAFB1735D !' # / ASSESSEE BY SHRI K.GOPAL & SHRI JITENDRA SINGH AND NEHA PARANJAPE $ / REVENUE BY SHRI VINOD KUMAR-DR, % $& ' # ( / DATE OF HEARING 27/07/2015 ' # ( / DATE OF ORDER: 26/10/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) 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 ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 2 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 APPEA L IS TIME BARRED BY 1625 DAYS. THE LD. COUNSEL FOR THE ASSES SEE INVITED OUR ATTENTION TO THE APPLICATION DATED 10/12/2012, FILED BY THE ASSESSEE, FOR CONDONING THE DELAY ALONG WITH AN AFFIDAVIT FILED BY THE MANAGING PARTNER OF THE ASSESSEE FIRM. THE CONTENTION OF THE ASSESSEE IS THAT THERE IS SUFFICI ENT REASON FOR THE DELAY WHICH MAY BE CONDONED. HOWEVER, THE LD. DR, STRONGLY OPPOSED THE DELAY BY CONTENDING THAT THERE IS NO REASONABLE CAUSE FOR HUGE DELAY, THEREFORE, MAY NOT BE CONDONED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE US , THE LD. COUNSEL FOR THE ASSESSEE PLACE RELIANCE UPON THE DE CISION FROM HONBLE APEX COURT IN COLLECTOR, LAND ACQUISIT ION VS KATAJI 167 ITR 471, (SC), L. BALKRISHNAN VS M. KRISHNAMURTHY, (1998) 7 SCC 123 AND VASUE & COMPANY VS STATE OF KERALA (2001) 124 STC 124 (KERALA.) WE HA VE PERUSED THE REASONS MENTIONED BY THE ASSESSEE IN IT S APPLICATION FOR CONDONOTION OF DELAY ALONG WITH THE CITED CASES. WE FIND THAT THE ASSESSEE DECLARED TOTAL INC OME OF RS.1,03,18,355/- ON 24/10/2003 AND THE ASSESSMENT O RDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 3 WAS PASSED ON 27/02/2006 DISALLOWING THE CLAIMED DEDUCTION U/S 80HHC OF THE ACT ON THE EXPORT INCENT IVES 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 BENE FITS. 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 CASE 167 ITR 471(SC) COLLECTOR, LAND ACQUISITIO N VS KATIJI. WE FIND THAT THE HONBLE APEX COURT HEL D AS UNDER:- WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERR ED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RI GHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERAT E DELAY. 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. ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 4 'THE PRIMARY FUNCTION OF A COURT IS TO ADJUDICATE T HE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE TIME-LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NO T BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOUL D TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITATION AR E NOT MEANT TO DESTROY THE RIGHTS OF PARTIES. THEY AR E 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 LIMITA TION FIXES A LIFESPAN FOR SUCH LEGAL REMEDY FOR THE REDRESS OF THE LEGAL INJURY SO SUFFERED. THE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN T HE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGAT ION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RI GHTS OF THE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMED Y PROMPTLY. 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 FILIN G APPEALS. THE AFFIDAVITS ARE DOCUMENTS OF EVIDENCE. ON THE BASIS OF THE AFFIDAVITS, IF THE COURT IS SATISF IED THAT SUFFICIENT EXPLANATION HAS BEEN GIVEN FOR CONDONING ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 5 DELAY, THEN THE AFFIDAVIT CAN BE ACCEPTED AS EVIDEN CE. IF PROOF OF WHAT IS STATED IN THE AFFIDAVIT IS INSI STED ON, THAT WILL PROLONG THE LITIGATION. HERE IS A CAS E WHERE THE ASSESSEE. IS AGGRIEVED BY THE ORDERS OF T HE ASSESSING AUTHORITIES. ACCORDING TO HIM, HE HAS BEE N DIRECTED TO PAY TAX WHICH HE WAS 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 TO HIS SUCCOUR. HERE, WE FIND SOM E TRUTH IN WHAT THE PETITIONER HAD STATED IN SO FAR A S HE HAS APPROACHED THIS COURT BY FILING ORIGINAL PETITI ON. IT WOULD HAVE BEEN BETTER, IF SOME EVIDENCE WAS GIV EN REGARDING HIS CASE THAT THE PARTICULAR ADVOCATE 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 FACTS AND TH E REASONS OF DELAY IN FILING THE APPEAL BEFORE THIS TRIBUNAL. 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 T HIS APPEAL VIDE ORDER DATED 13/12/2007 AND THE ORDER WAS RECEI VED BY THE REPRESENTATIVE OF THE ASSESSEE, WHO KEPT THE OR DER IN THE DRAWER AND THEREAFTER THE ASSESSEE MET WITH AN ACCI DENT AND COULD NOT ATTEND THE OFFICE. THE APPEAL WAS FILED B Y THE ASSESSEE ON 25/05/2012, WHICH RESULTED INTO DELAY O F 1625 DAYS. IN THE APPLICATION OF THE ASSESSEE (IN PARA- 3), IT HAS BEEN MENTIONED THAT THE ORDER OF THE LD. FIRST APPE LLATE AUTHORITY WAS RECEIVED BY THE OFFICE ASSISTANT, WHE REAS, IN THE ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 6 AFFIDAVIT, THE ORDER WAS CLAIMED TO BE RECEIVED BY THE PEON OF THE FIRM, THEREFORE, THE CLAIM OF THE ASSESSEE IS I TSELF CONTRADICTORY. FURTHER, THE ASSESSEE MET WITH AN ACCIDENT ON 30/07/2010, WHEREAS, THE ORDER OF THE LD. FIRST APP ELLATE AUTHORITY IS DATED 13/12/2007, THUS, THE CLAIM OF T HE ASSESSEE THAT HE COULD NOT FILE BEFORE THE TRIBUNAL , DUE TO ACCIDENT IS MERELY FOR ARGUMENT SAKE AND THE ASSESS EE WAS HAVING SUFFICIENT TIME TO FILE THE APPEAL. IT IS A LSO NOTED THAT THE ASSESSEE WAS ATTENDING OTHER APPEALS AND ONLY W HEN THE RECOVERY NOTICE WAS SENT TO THE ASSESSEE BY THE DEP ARTMENT, THE ASSESSEE TOOK A DECISION TO FILE THE APPEAL. IT IS ALSO NOTED THAT EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS BEFORE THE LD. ASSESSING OFFICER, THE AS SESSEE WAS REPRESENTED BY AUTHORIZED REPRESENTATIVE, MEANING T HEREBY, THE ASSESSEE WAS WELL EQUIPPED WITH THE ADVICE OF T HE LEGAL REPRESENTATIVES AND EVEN OTHERWISE, THE APPEAL WAS TO BE PREPARED/FILED BY THE REPRESENTATIVES AND NOT BY TH E ASSESSEE. IT IS NOT THE CASE THAT THE ASSESSEE WAS NOT IN A P OSITION TO EVEN SIGN THE DOCUMENTS/APPEAL MEMO. IT WAS CLEARLY A CASE OF CONSCIOUS DECISION NOT TO FILE THE APPEAL AT EAR LY STAGE AND TO FILE THE APPEAL AT THE LATER STAGE. THE ASSESSEE WAS HAVING SUFFICIENT TIME AND WAS NOT PREVENTED BY ANY SUFFIC IENT CAUSE. IT IS NOT A CASE OF SMALL DELAY RATHER DELAY OF 162 5 DAYS ( FOUR YEAR AND FORTY FIVE DAYS). BROADLY, WE ARE OF THE V IEW, THAT SUCH A HUGE DELAY THAT TOO IN THE ABSENCE OF PLAUSIBLE R EASONING, SHOULD NOT BE CONDONED. THE ASSESSEE HAS NOT EXPLAI NED PROPERLY THE REASON OF DELAY, WHICH THE ASSESSEE, O THERWISE, EXPECTED TO ADDUCE THE DELAY WITH DOCUMENTARY EVIDE NCE. ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 7 THIS IS A CLEAR CUT CASE OF DELIBERATE DELAY OR CON SCIOUSLY FILING THE DELAY AFTER SUCH A LONG TIME. AS PER PROVISION OF SECTION 253(3), (3)A OF THE ACT, THE ASSESSEE IS TO FILE TH E APPEAL WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF TH E LD. FIRST APPELLATE AUTHORITY, WHEREAS, THE ASSESSEE FILED TH E APPEAL AFTER 1625 DAYS, WHICH IS EVEN BEYOND IMAGINATION, ESPECIALLY WHEN, THE ASSESSEE HAS NOT EXPLAINED THE REASON OF DELAY. WE ARE AWARE THAT THE PRIMARY FUNCTION OF THE 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 T IME BUT AT THE SAME TIME IT IS EQUALLY IMPORTANT TO NOTE WHETHER TH E ASSESSEE HAS DULY EXPLAINED THE REASON OF DELAY. THE HONBL E COURT IN VASU & COMPANY VS STATE OF KERALA HAS CLEARLY MENTI ONED THAT IF THE PETITIONER IS NEGLIGENT OR IRRESPONSIBL E, THE COURT CANNOT COME TO HIS RESCUE. THIS IS EXACTLY THE CASE BEFORE US. THE LAW OF LIMITATION FIXES A LIFE SPAN FOR SUCH LE GAL REMEDIES FOR THE REDRESSAL OF A LEGAL INJURY, IF ANY, SUFFER ED BY THE ASSESSEE. HOWEVER, IN THE PRESENT APPEAL, THERE IS A CLEAR CUT CONSCIOUS DELAY OF 1625 DAYS, WHICH, IN OUR VIEW, I F CONDONED, UNDER THE FACTS AVAILABLE ON RECORD, THEN THERE IS NO NEED TO KEEP THE PROVISION UNDER THE LIMITATION ACT. EVEN THE HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION VS KATIJI (SUPRA) HAS CLEARLY MENTIONED ABOUT NON-DELIBERATE DELAY. THUS , IN OUR HUMBLE OPINION, THE CASES RELIED BY THE ASSESSEE CA NNOT COME TO THE RESCUE OF THE ASSESSEE, BECAUSE THE ASSESSE E HAS NOT ADDUCED ANY EVIDENCE/REASON, SUBSTANTIATING THAT TH E DELAY WAS CAUSED DUE TO THE REASONS WHICH WERE BEYOND HIS /ITS ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 8 CONTROL AND AT THE SAME TIME, THE REASONS WERE GOO D AND SUFFICEINT, RATHER, IT IS A CLEAR CUT CASE OF CONS CIOUS DECISION. EVEN, THE HONBLE APEX COURT IN VEDABAI ALIAS VAIJAYANATABAI BABURAO VS SHANTARMA BAVURAO PATIL R EPORTED IN (2002) 253 ITR 798 (SC) MADE A DISTINCTION IN DE LAY AND INORDINATE 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 DISTINCT ION MUST BE MADE BETWEEN A CASE, WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW D AYS. WHEREAS, IN THE FORMER CASE, THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACT OR, SO THE CASE CALLS FOR MORE CAUTIOUS APPROACH. 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 EXAM INED THEN IT CAN BE SAID THAT THE PROVISIONS RELATING TO PRESCRI PTION OF LIMITATION IN EVERY STATUTE MUST NOT BE CONSTRUED S O LIBERALLY THAT IT WOULD HAVE THE EFFECT OF TAKING AWAY THE BE NEFIT ACCRUING TO THE OTHER PARTY IN A MECHANICAL MANNER. WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION A ND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, THERE SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. NOW, IT IS A SETTLED PRINCIPLE OF LAW THAT THE PROVISIONS RELATING TO SPECIFIED PERIO D OF LIMITATION ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 9 MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CON SEQUENCES. IN THIS REGARD, 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 T HE STATUTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEN D THE PERIOD OF LIMITATION ON EQUITABLE GROUNDS. THE DISC RETION EXERCISED BY THE HIGH COURT, WAS, THUS, NEITHER PRO PER NOR JUDICIOUS. THE ORDER CONDONING THE DELAY CANNOT BE SUSTAINED. THIS APPEAL, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY, THE APPL ICATION FOR CONDONATION OF DELAY FILED IN THE HIGH COURT WO ULD STAND REJECTED AND THE MISCELLANEOUS FIRST APPEAL S HALL 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 REASONS, IN THAT EVENT IT CANN OT GIVE RISE TO A QUESTION 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 EV IDENCE TO SUPPORT IT OR IF IT IS PERVERSE. ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 10 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 DISC RETION FOR THE TRIBUNAL TO CONDONE DELAY FOR SUFFICIENT CA USE ON THE FACTS AND CIRCUMSTANCES OF EACH CASE. THE CONSISTENT VIEW IS THAT SUCH QUESTION WOULD BE A QUESTION OF FACT SIMPLICITER AND WOULD NOT BE COVER ED UNDER THE PROVISIONS OF SECTION 256 OF THE ACT UNLE SS SUCH EXERCISE OF DISCRETION OR CONCLUSION ARRIVED A T WAS PERVERSE OR SO ILLOGICAL THAT NO REASONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HAVE EXERCISED THEIR DISCRETION AND WE FIND NOTHING PERV ERSE IN THE IMPUGNED ORDERS. SPECIFIC REASONS HAVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT E VEN REFLECT THE CONDUCT OF THE APPELLANT BEFORE THE 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 BECAU SE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAM E FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTROVERSY A QUESTION OF LAW. SO FAR AS SUCH DEC ISION OF THE AUTHORITY IS IN CONFORMITY TO THE PRINCIPLE OF LAW ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 11 AND IS APPARENTLY 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 TRIB UNAL HAS APPLIED WRONG PRINCIPLES OF LAW OR THAT IT HAS RELIED UPON INCORRECT PRINCIPLES OF LAW REGULATING THE CONTROVERSY IN ISSUE (REFER [1976] 105 ITR 133). WE ARE ALSO NOT IN A POSITION TO AGREE WITH THE CONTENTION RAISED ON BEHALF OF THE PETITIONER THAT THE AFORE-GIVEN THREE REASONS AMOUNT TO PALPABLY ERRONEOUS ERROR OF LAW IN EXERCISE OF DISCRETION BY THE AUTHORITIES CONCERNED. ON THE CONTRARY, WE HAVE ALREADY 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 JURISDICTI ON 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 JUSTIFIED AND THUS , WE DECLINE TO ISSUE ANY DIRECTION TO THE INCOME-TAX APPELLATE TRIBUNAL, AMRITSAR, TO STATE AND REFER TH E AFORESAID QUESTION, AS QUESTION OF LAW, TO THIS COU RT IN EXERCISE OF ITS POWER UNDER SECTION 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 MOHA N KABRA (2002) 257 ITR 773 (P& H). THE TOTALITY OF FACTS, CLEARLY ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 12 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 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. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF HEARING ON 27/07/2015 . SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; ) DATED : 26/10/2015 ITA NO.4683 MUM/2012 , M/S B.S. INTERNATIONAL (BOMBAY) 13 F{X~{T? P.S/. .. !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 1# ( + ) / THE CIT, MUMBAI. 4. 0 0 1# / CIT(A)- , MUMBAI 5. 3$4.# , 0 +( 5 , / DR, ITAT, MUMBAI 6. 6!7 / GUARD FILE. ! / BY ORDER, /3+#.# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI