S.S. BUILDERS, MUMBAI V. ITO 20(3)(3), MUMBAI

ITA 5765/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1580 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 29-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C P PATHAK
• Assessee Lawyers: AJAY R SINGH
• Keywords: Business income; Depreciation; Wrong claim; Condonation of delay
• Section: 271(1)(c); 143(3); 143(1); 143(2); 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI R.K.PANDA, AM I.T.A. NO. 5765/MUM/2009 (ASSESSMENT YEAR 2003-04) M/S. S.S. BUILDERS 175, LANDMARK, CARTER ROAD, BANDRA (WEST), MUMBAI PAN: AANFS0339F VS. INCOME-TAX OFFICER 20(3)(3) MUMBAI APPELLANT RESPONDENT APPELLANT BY : SHRI AJAY R. SINGH RESPONDENT BY : SHRI C.P. PATHAK ORDER DATE OF HEARING: 17.05.2010 DATE OF ORDER: 04.06.2010 THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 8 TH JULY, 2009 OF THE CIT(A)-XXXII, MUMBAI RELATING TO ASSESSMENT YEAR 2003-04. 2. THE ASSESSEE IN ITS GROUNDS OF APPEAL HAS CHALLENGE D THE ORDER OF THE CIT(A) IN NOT CONDONING THE DELAY OF 693 DAY IN FILING OF THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 30 TH JANUARY, 2006 AND THEREBY CONFIRMING THE BUSINESS INCOME AT RS.1,29,100 AS AGAINST THE RETUR NED LOSS OF RS.4,39,658. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 10 TH OCTOBER, 2003 DECLARING A LOSS OF RS.4,39,658. THE ASSESSEE IS IN THE BUSINESS AS A BUILDER AND DEVELOPER AND IS FOLLOWING THE PROJECT COMPLETION METHOD FOR ACCOUNTING ITS PROFITS OF THE SAID BUSINESS. THE RETURN WAS ACCOMPANIED BY AUDIT REPO RT I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 2 U/S. 44AB OF THE INCOME-TAX ACT, 1961 (THE ACT) AND WAS PROCESSED U/S. 143(1) OF THE ACT ACCEPTING THE TOTA L LOSS RETURNED. SUBSEQUENTLY, NOTICE U/S. 143(2) WAS ISS UED WHEN THE CASE WAS SELECTED FOR SCRUTINY. THE ASSES SING OFFICER CALLED FOR VARIOUS DETAILS DURING THE COURS E OF ASSESSMENT PROCEEDINGS AND NOTED THAT THE ASSESSEE HAS DEBITED VARIOUS EXPENSES. HE FURTHER NOTED THAT IN THE ANNEXURE/SCHEDULE 12, PARA 4 TO THE AUDIT REPORT TH E AUDITOR HAS MENTIONED THAT FEW BILLS WERE MISSING A S PER SEPARATE LETTER WRITTEN AND THE PARTNERS HAVE ASSUR ED THAT THESE PAYMENTS WERE GENUINE AND DUPLICATE BILLS WIL L BE OBTAINED AS THE SAME ARE MISPLACED. THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DETAILS O F THE SAME AND FURTHER ASKED TO IDENTIFY SUCH EXPENSES. THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THA T NONE OF THE EXPENSES WAS CLAIMED BY THE ASSESSEE. ON BE ING QUESTIONED BY THE ASSESSING OFFICER AS TO WHY THE B OOKS OF ACCOUNT SHOULD NOT BE REJECTED, IT WAS SUBMITTED TH AT THE BOOKS ARE WRITTEN AND MAINTAINED WITH ALL THE VOUCH ERS AND MAJORITY OF THE EXPENSES ARE INCURRED BY CHEQUE S AND ARE DULY ACCOUNTED FOR AND BASED ON THESE BOOKS THE RETURN WAS FILED. HOWEVER, THE ASSESSING OFFICER R EJECTED THE EXPLANATION GIVEN BY THE ASSESSEE AND HELD THAT THOUGH THE PROJECT HAS BEEN COMPLETED THE ASSESSEE IS STILL STATING THAT THE PROJECT IS UNDER CONSTRUCTIO N AND DEBITED VARIOUS EXPENSES ON THE CONSTRUCTION. WHEN , IN FACT, NO EXPENDITURE HAS BEEN INCURRED, THEREFORE, QUESTION OF DEBITING EXPENSES DOES NOT ARISE AT ALL . HE ACCORDINGLY REJECTED THE EXPLANATION GIVEN BY THE A SSESSEE AND IGNORED THE LOSS OF RS.4,39,6558. 4. THE ASSESSING OFFICER SIMILARLY NOTED THAT THE ASSESSEE HAS DEBITED VARIOUS EXPENSES. ON BEING AS KED I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 3 BY THE ASSESSING OFFICER TO FURNISH THE DETAILS OF ALL THE EXPENSES, THE ASSESSEE SUBMITTED THAT ALL EXPENSES ARE INCURRED FOR BUSINESS PURPOSES ONLY AND THERE IS NO PERSONAL ELEMENT INVOLVED. THE ASSESSING OFFICER F URTHER NOTED THAT THE ASSESSEE FIRM OWNS A CAR WHICH IS REGISTERED IN THE NAME OF MS. NIGAR KHAN. ON BEING QUESTIONED BY THE ASSESSING OFFICER, IT WAS SUBMITT ED THAT THERE IS NO BAR OF OWNING AN ASSET IN THE NAME OF A PARTNER AND IT IS NOT NECESSARY TO OWN THE ASSET IN THE FIRMS NAME FOR CLAIMING DEPRECIATION. NOT BEING S ATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND OBSE RVING THAT THE CAR WAS REGISTERED IN THE NAME OF MS. NIGA R KHAN, PARTNER OF THE FIRM, THE ASSESSING OFFICER DISALLOW ED DEPRECIATION ON THE MOTORCAR AMOUNTING TO RS.2,09,9 72. AS REGARDS THE BALANCE EXPENSES IN PROFIT AND LOSS A/C. THE ASSESSING OFFICER ALLOWED ONLY AN AMOUNT OF RS.1,70,899 BEING RELATABLE TO BUSINESS PURPOSES. HE ACCORDINGLY DISALLOWED AN AMOUNT OF RS.1,29,101 FRO M THE RECEIPT OF RS.3 LAKHS RECEIVED BY THE ASSESSEE DURI NG THE YEAR. 5. THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT WHIC H WAS DULY SERVED ON HIM ON 10 TH FEBRUARY, 2006. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED U/S. 143(3) ON 1 ST FEBRUARY, 2008. THE CIT(A) NOTED THAT THE DUE DATE OF FILING THE APPEAL WAS 10 TH MARCH, 2006 WHEREAS THE SAME HAS BEEN FILED ON 1 ST FEBRUARY, 2008 WHICH MEANS THERE IS A DELAY OF 1 YEAR AND 11 MONTH S. THE ASSESSEE VIDE LETTER DATED 2 ND JUNE, 2009 REQUESTED THE CIT(A) FOR CONDONATION OF THE DELAY ON THE GROU ND THAT THE ASSESSEE HAS INITIALLY NOT FILED THE APPEAL IN ORDER TO BUY PEACE AND COOPERATE WITH THE DEPARTMENT. HOWEV ER, I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 4 DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE A.Y. 2005-06 THE ASSESSEE WAS AGAIN SUBJECTED TO THE SAM E DISALLOWANCE AGAINST WHICH AN APPEAL HAS BEEN FILED ON 18 TH JANUARY, 2008. IT WAS, THEREFORE, THOUGH PRUDENT TO AGITATE THE ISSUE IN A.Y. 2003-04 ALSO WHICH IS SIM ILAR TO THAT OF A.Y. 2005-06. IT WAS ACCORDINGLY REQUESTED THAT THE DELAY IN FILING OF THE APPEAL BE CONDONED. 6. HOWEVER, THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT T HE ASSESSING OFFICER HAS ALREADY DISALLOWED THE RETURN ED LOSS OF RS.4,39,658 BECAUSE THE ASSESSEE WAS WRONGLY CLA IMING THAT ITS PROJECT WAS INCOMPLETE. FURTHER CONSIDERI NG THE PROFIT DURING THE YEAR ON SALE OF FLATS AT RS.3 LAK HS AND AFTER GRANTING DEDUCTION FOR EXPENSES AT RS.1,70,89 9, THE ASSESSING OFFICER HAD COMPUTED THE TOTAL INCOME AT RS.1,29,101. THE ASSESSING OFFICER HAS SIMULTANEOU SLY INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. THE ASSESSING OFFICER HAD ALSO INITIATED THE PENALT Y PROCEEDINGS U/S. 271(1)(C) OF THE ACT ON ACCOUNT OF WRONG CLAIM OF DEPRECIATION ON MOTORCAR PURCHASED IN THE NAME OF ONE OF THE PARTNERS. SINCE THE ASSESSEE DID NOT CHOOSE TO FILE AN APPEAL AGAINST THE ASSESSMENT ORDER, IT TO PROVES THAT THE DECISION NOT TO FILE THE APPEAL WAS NOT ON LY INTENTIONAL BUT THE SAME WAS TAKEN WITH FULL CONSCI ENCE. LATER WHEN THE ASSESSEE DECIDED TO FILE AN APPEAL A GAINST THE ASSESSMENT ORDER FOR A.Y. 2005-06, IT HAS ON SE COND THOUGHT DECIDED TO FILE THE APPEAL FOR THE IMPUGNED ASSESSMENT YEAR WITH A DELAY OF 1 YEAR AND 11 MONTH S. THE EXCUSE FOR CONDONATION OF DELAY ON THE PART OF THE ASSESSEE BEING ITS DECISION TO FILE APPEAL IN SUBSE QUENT YEAR I.E., A.Y. 2005-06 CANNOT BE CONSIDERED TO BE A PROPER REASON FOR CONDONATION OF SUCH LONG DELAY. HE I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 5 NOTED THAT THE ASSESSEE HAS NOT STATED AS TO WHAT HAPPENED IN A.Y. 2004-05. THEREFORE, ACCORDING TO THE CIT(A) IT IS NOT A SUFFICIENT CAUSE FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED PERIOD. HE ACCORDINGLY DID N OT CONDONE THE DELAY IN FILING OF THE APPEAL AND DISMI SSED THE APPEAL FILED BY THE ASSESSEE BEING UNADMITTED. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US. 7. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BEFORE THE CIT(A). HE SUBMITTED THAT ONLY TO BUY PEACE OF MIND THE ASSESS EE DID NOT PREFER ANY APPEAL AGAINST THE ORDER PASSED U/S. 143()3) OF THE ACT. SINCE THE ASSESSING OFFICER LE VIED PENALTY U/S. 271(1)(C) OF THE ACT ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION WHICH THE ASSESSING OF FICER SHOULD HAVE ALLOWED IN THE ASSESSMENT ITSELF AND SI NCE THE CIT(A) HAS ALSO CONFIRMED THE PENALTY LEVIED U/. 27 1(1)(C) BY THE ASSESSING OFFICER, THE ASSESSEE FILED THE AP PEAL. REFERRING TO VARIOUS DECISIONS, HE SUBMITTED THAT T HE EXPRESSION SUFFICIENT CAUSE MUST RECEIVE A LIBERA L CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE A ND GENERALLY DELAYS IN PREFERRING THE APPEALS ARE REQU IRED TO BE CONDONED IN THE INTEREST OF JUSTICE. HE SUBMITT ED THAT THE PRIMARY FUNCTION OF ANY QUASI JUDICIAL BODY IS FURTHERANCE OF ADMINISTRATION OF SUBSTANTIAL JUSTIC E AND LENGTH OF DELAY IS IMMATERIAL. HE SUBMITTED THAT A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAYS. THEREFORE, A JUSTICE ORIENTED APPROACH IS REQUIRED BY THE COURTS. SINCE THE EXPLANATION OF THE ASSESSEE IN T HE INSTANT CASE DID NOT SMACK MALAFIDE OR WAS NOT PUT FORTH AS A DILATORY STRATEGY, THE DELAY IN FILING OF THE APPEAL SHOULD BE CONDONED. HE SUBMITTED THAT REFUSING OF I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 6 CONDONATION OF DELAY CAN RESULT IN A MERITORIOUS MA TTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE MAY BE DEFEATED. HE ACCORDINGLY SUBMITTED THAT THE DELAY IN FILING OF THE APPEAL MAY BE CONDONED A ND THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE CIT( A) FOR DECIDING THE ISSUE ON MERIT. FOR THE ABOVE PROPOSI TIONS HE RELIED ON THE FOLLOWING DECISIONS: A. M/S. BARMAG INDIA PVT. LTD. VS. DY. CIT, ITA NO. 4846/M/2005, A.Y. 1999-2000 DATE 25.6.2009. B. STATE OF NAGALAND VS. LIPOK AO, 2005 (183) E.L.T. 337 (SC). C. ANGELA J. KAZI VS. ITO, (2006) 10 SOT 139 (MUM). D. EARTHMETAL ELECTRICALS P. LTD. VS. ITO (2005) 4 SOT 484 (MUM). 8. THE LEARNED DR, ON THE OTHER HAND, STRONGLY SUPPORTED THE ORDER OF THE CIT(A). HE SUBMITTED TH AT IT WAS THE PLEA OF THE ASSESSEE BEFORE THE ASSESSING O FFICER THAT TO BUY PEACE, IT DID NOT FILE AN APPEAL AND WA S WILLING TO PAY THE TAXES. NOW WHEN THE PENALTY U/S. 271(1) (C) WAS CONFIRMED THAT THE ASSESSEE IS FILING AN APPEAL AGA INST THE ASSESSMENT ORDER. HE SUBMITTED THAT THE ASSESSEE H AS TO EXPLAIN EACH DAY OF DELAY SINCE IN THE INSTANT CASE THE CIT(A) HAS GIVEN A CLEAR CUT FINDING THAT THE ASSES SEE HAS NOT ADVANCED SUFFICIENT CAUSE FOR NOT FILING THE AP PEAL WITHIN THE PRESCRIBED TIME PERIOD. THEREFORE, THE DELAY WAS RIGHTLY NOT CONDONED BY THE CIT(A). HE ACCORDI NGLY SUBMITTED THAT THE GROUNDS RAISED BY THE ASSESSEE M AY BE DISMISSED. 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFI CER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF TH E I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 7 ASSESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECIS IONS CITED BEFORE ME. THERE IS NO DISPUTE TO THE FACT T HAT THE ASSESSMENT U/S. 143(3) OF THE ACT IN THE INSTANT CA SE WAS COMPLETED ON 30 TH JANUARY, 2006 DETERMINING THE TOTAL INCOME AT RS.1,29,100 AS AGAINST THE RETURNED LOSS OF RS.4,39,658. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSING OFFICER IN THE SAID ORDER WHILE DISALLOWI NG THE LOSS OF RS.4,39,658 HAS ALSO DISALLOWED DEPRECIATIO N ON MOTORCAR AMOUNTING TO RS.2,09,972 APART FROM DISALL OWING EXPENSES AMOUNTING TO RS.1,29,101/2. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSING OFFICER AT P ARAS 5 TO 8 OF THE ORDER HAS CATEGORICALLY MENTIONED THAT PEN ALTY PROCEEDINGS U/S. 271(1)(C) READ WITH EXPLANATION (1 ) THERETO ARE BEING INITIATED SEPARATELY. THERE IS A LSO NO DISPUTE TO THE FACT THAT THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE ORDER PASSED U/S. 143(3) OF THE ACT. WE FIND FROM THE SUBMISSION MADE BY THE ASSESSEE TH AT THE ASSESSING OFFICER LEVIED PENALTY OF RS.27,255 U /S. 271(1)(C) OF THE ACT ON 25 TH JULY, 2006. WE FURTHER FIND THE CIT(A) CONFIRMED THE PENALTY IN RESPECT OF DISALLOWANCE OF DEPRECIATION ON MOTOR CAR ON 12.11. 2007. THEREFORE, FROM THE ABOVE, WE FIND EVEN AFTER THE P ENALTY WAS CONFIRMED BY THE CIT(A), THE ASSESSEE WAS NOT P ROMPT IN FILING THE APPEAL WHICH WAS FILED ON 1.2.2008. THEREFORE, WHEN THE ASSESSEE INITIALLY CHOSE NOT TO FILE AN APPEAL AGAINST THE ORDER PASSED U/S. 143(3) AND HAS NOT IMMEDIATELY FILED EVEN AFTER PENALTY U/S. 271(1)(C) OF THE ACT WAS CONFIRMED BY THE CIT(A) ON 12.11.2007 AND H AS FILED AN APPEAL BEFORE HIM ON 1 ST FEBRUARY, 2008, THEREFORE, WE DO NOT FIND ANY SUFFICIENT REASON FOR NOT FILING THE APPEAL IN TIME. I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 8 10. AS REGARDS THE VARIOUS DECISIONS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE FIND THOSE ARE DISTINGUISHABLE ON FACTS AND ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THE CASE OF M/S. BAR MAG INDIA PVT. LTD. VS. DCIT, I.T.A. NO. 4846/MUM/05 OR DER DATED 25 TH JUNE, 2009 THE DELAY WAS DUE TO ADVICE RECEIVED FROM THE CHARTERED ACCOUNTANT, SHRI SHAILE SH DAVE FOR NOT PREFERRING AN APPEAL IF PENALTY U/S. 2 71(1)(C) WAS NOT LEVIED BY THE DEPARTMENT. WHEN THE DEPARTM ENT FINALLY LEVIED THE PENALTY U/S. 271(1)(C) OF THE AC T, BY AN ORDER DATED 17 TH FEBRUARY, 2004 THE ASSESSEE RECEIVED ADVICE FROM THE SAID CA TO FILE AN APPEAL AGAINST T HE QUANTUM ASSESSMENT. UNDER THOSE CIRCUMSTANCES THE DELAY OF 410 DAYS WAS CONDONED BUT IN THE INSTANT C ASE THE DELAY IS 1 YEAR AND 11 MONTHS AND THE ASSESSEE HAS NOT FILED THE APPEAL IMMEDIATELY AFTER THE PENALTY U/S.271(1)(C) OF THE ACT WAS CONFIRMED BY THE CIT(A ). THEREFORE, THE DECISION OF THE TRIBUNAL IN THE CASE OF BARMAG INDIA PVT. LTD. IS NOT APPLICABLE. 11. IN THE CASE OF STATE OF NAGALAND VS. LIPOK AO, REPORTED IN [2005 (183) ELT 337 (SC)] THE HONBLE SUPREME COURT CONDONED THE DELAY INFILLING OF THE A PPEAL BY THE STATE GOVERNMENT HOLDING THAT SOME LATITUDE IS PERMISSIBLE DUE TO PROCEDURAL RED-TAPE IN GOVERNMEN T FUNCTIONING AND ALSO ON ACCOUNT OF THAT IF APPEAL I S DISMISSED PUBLIC INTEREST SUFFERS. IT WAS HELD IN THE SAID DECISION THAT THOUGH STANDARD OF PROOF OF SUFFICIEN T CAUSE IS NOT DIFFERENT IN CASE OF STATE AND PRIVATE CITIZ EN, THEY CANNOT BE PUT ON SAME FOOTING AS INDIVIDUAL WOULD A LWAYS BE QUICKER IN TAKING DECISION. HOWEVER, IN THE INS TANT CASE THE ASSESSEE HAS NOT TAKEN QUICK DECISION IN F ILING OF THE APPEAL ALTHOUGH HE WAS AWARE OF THE CONSEQUENCE S. I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 9 THEREFORE, THE ABOVE DECISION, IN OUR OPINION, DOES NOT HELP THE ASSESSEE. 12. AS REGARDS THE DECISION OF THE TRIBUNAL IN THE CASE OF ANGELA J. KAZI VS. ITO, REPORTED IN 10 SOT 193 (MUM ) THE DELAY WAS CONDONED BY THE TRIBUNAL ON THE GROUND TH AT THERE WAS PROCEDURAL DELAY AND LONG PENDENCY OF LIT IGATION AT VARIOUS STAGES FOR WHICH THE DELAY HAD OCCURRED. ACCORDINGLY THE DELAY WAS CONDONED. IT WAS HELD TH AT THE EXPLANATION OF THE ASSESSEE DID NOT SMACK MALAFIDE OR NOT PUT FORTH AS A DILATORY STRATEGY FOR WHICH THE DELA Y WAS CONDONED. HOWEVER, IN THE INSTANT CASE FROM THE SUBMISSIONS FILED BY THE ASSESSEE IN THE PAPER BOOK , WE FIND THE ASSESSEE WAS PURSUING THE PENALTY MATTER A ND HAS FILED AN APPEAL AGAINST THE PENALTY ORDER FOR T HE A.Y. 2003-04 BEFORE THE TRIBUNAL ON 22 ND JANUARY, 2008. THEREFORE, FILING THE BELATED APPEAL AGAINST THE ASSESSMENT ORDER FOR THE SAME ASSESSMENT YEAR BEFOR E THE CIT(A) ON 1 ST FEBRUARY, 2008, IN OUR OPINION, IS NOTHING BUT A DILATORY STRATEGY TO PROLONG THE PROCESS OF L ITIGATION. THEREFORE, THE DECISION CITED BY THE LEARNED COUNSE L FOR THE ASSESSEE IS DISTINGUISHABLE ON FACTS AND NOT AP PLICABLE TO THE PRESENT CASE. 13. IN THE DECISION OF THE TRIBUNAL IN THE CASE OF EARTHMETAL ELECTRICALS (P) LTD. VS. ITO, REPORTED I N 4 SOT 484 (MUM) THE DELAY WAS ONLY 71 DAYS AND THE TRIBUN AL CONDONED THE DELAY ON THE GROUND THAT THE EXPLANATI ON OFFERED BY THE ASSESSEE DOES NOT SMACK OF MALAFIDE OR IS NOT PUT FORTH AS A PART OF DILATORY STRATEGY. ACCO RDINGLY THE DELAY WAS CONDONED. BUT HERE IN THE INSTANT CA SE AS MENTIONED IN THE PRECEDING PARAGRAPHS, THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) AFTER FILING THE APPEA L BEFORE I.T.A. NO. 5765/MUM/2009 M/S. S.S. BUILDERS ==================== 10 THE TRIBUNAL IN THE PENALTY MATTER. THEREFORE, THIS DECISION IS ALSO OF NO HELP TO THE ASSESSEE. 14. IT HAS BEEN HELD IN VARIOUS JUDICIAL PRONOUNCEMENTS THAT AN ASSESSEE OR THE DEPARTMENT MUST EXPLAIN EAC H DAY OF DELAY FOR FILING OF AN APPEAL. IN THE INSTANT C ASE THE APPEAL HAS BEEN FILED WITH A DELAY OF MORE THAN 1 Y EAR AND 11 MONTHS. THE ARGUMENTS ADVANCED BY THE ASSESSEE THAT SINCE PENALTY HAS BEEN CONFIRMED BY THE CIT(A), HE IS NOW AGITATING THE QUANTUM APPEAL, IN OUR OPINION, IS NO T A SUFFICIENT REASON FOR CONDONING THE DELAY. WE, THE REFORE, UPHOLD THE ORDER OF THE CIT(A) IN NOT CONDONING THE DELAY AND THEREBY NOT ADMITTING THE APPEALS. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY DISMISSED. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 4 TH JUNE, 2010. SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 4 TH JUNE, 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-XXXII, MUMBAI 4. THE CIT-20, MUMBAI 5. THE DR SMC BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO