BRIHAN MUMBAI KREEDA & LALITKALA PRATISHTAN, MUMBAI V. DIT (E), MUMBAI

ITA 6417/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 3009 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONIDR
• Keywords: Charitable institution; Period of limitation; Question of law; Competent authority; Condonation of delay
• Section: 143(3); 80HHC; 12A; 12AA

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.6417/MUM/2013 ASSESSMENT YEAR 2009-10 BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN, SHAHAJI RAJE BHOSALE KREEDA SANKUL, JAY PRAKASH ROAD, ANDHERI (WEST), MUMBAI-400058 / VS. DIRECTOR OF INCOME TAX (EXEMPTION), 6 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-400012 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AAATB0609C !' # / ASSESSEE BY SHRI SUNIL NAHTA $ / REVENUE BY SHRI VIJAY KUMAR SONI-DR $% & # ' / DATE OF HEARI NG : 26/10/2015 & # ' / DATE OF ORDER: 20/11/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 23/12/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO CANCELING/WITHDRAWING THE REGISTRATION GRANTED TO T HE ASSESSEE TRUST U/S 12A OF THE INCOME TAX ACT, 1961 BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 2 (HEREINAFTER THE ACT) INVOKING THE PROVISIONS OF SE CTION 2(15) OF THE ACT AND NOT SATISFYING THE CONDITIONS CONTAI NED IN SECTION 12AA(3) OF THE ACT. 2. AT THE TIME OF HEARING, SHRI N.P. SINGH, LD. CI T-DR, POINTED OUT THAT THERE IS HUGE DELAY OF 618 DAYS, W HICH MAY BE DECIDED FIRST. THE ASSESSEE HAS FILED APPLICATIO N FOR CODONATION OF DELAY ALONG WITH AFFIDAVIT SIGNED BY CHIEF ACCOUNTANT OF THE ASSESSEE TRUST. THE CRUX OF ARGU MENT ADVANCED BY SHRI K. GOPAL, LD. COUNSEL FOR THE ASSE SSEE, THAT ORDER U/S 12AA(3) OF THE ACT PASSED BY LD. DIT(E) W AS COMMUNICATED TO THE ASSESSEE IN THE MONTH OF DECEMB ER, 2011 AND THE ASSESSEE WAS NOT AWARE WHAT FURTHER AC TIONS IS TO BE TAKEN. IT WAS ALSO CONTENDED THAT THE WORK O F FILING THE APPEAL WAS ENTRUSTED TO THEN CHARTERED ACCOUNTANT, WHO DID NOT ADVICE PROPERLY AND CHOOSE NOT TO FILE THE APPE AL. LATER ON, THE ASSESSEE CONSULTED ANOTHER PROFESSIONAL, WH O ADVISED THAT APPEAL HAS TO BE FILED AND THEN THE ASSESSEE F ILED THE APPEAL ON 31/10/2013 WHICH RESULTED INTO SUBSTANTIA L DELAY IN FILING THE APPEAL. THE ASSESSEE RELIED UPON THE DECISION FROM HONBLE APEX COURT IN THE CASE OF IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS. (CIVIL APPEAL NOO.2 395 OF 2008). 2.1. ON THE OTHER HAND, THE LD. CIT-DR, STRONGLY OPPOSED CONDONATION OF DELAY BY SUBMITTING THAT TIM E MENTIONED IN THE STATUTE HAS TO BE APPRECIATED, CONSEQUENTLY, THE DELAY OF EACH DAY HAS TO BE EXPLA INED BY THE ASSESSEE AND FILING OF APPEAL AFTER SUCH A SUBS TANTIAL GAP BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 3 IS NOT MATTER OF RIGHT. HE DREW OUR ATTENTION TO PA RA 10 OF THE AFFIDAVIT FILED BY THE ASSESSEE. IT WAS CONTENDED T HAT THERE ARE TWO ADVICES AND THE ASSESSEE CONSCIOUSLY ACTED ON B OTH THE ADVICE, FIRST NOT TO FILE THE APPEAL AND THE SECOND ADVICE IS ORAL, MEANING THEREBY, THE ASSESSEE TOOK A CONSCIOU S DECISION NOT TO FILE THE APPEAL. IT WAS ASSERTED T HAT WHILE DEALING WITH THE APPLICATION, WE ARE ELABORATING ON REASONS OF DELAY AND THE ASSESSEE WAS AWARE THAT NO APPEAL HAS BEEN FILED AND HE ACTED ON THE ADVICE, THEREFORE, IN THE ABSENCE OF ANY SATISFACTORY REASON OF DELAY, BEING INACTION ON THE PART OF THE ASSESSEE, WHICH CAUSED HUGE DELAY, NO LENIENCY IS REQUIRED. SO FAR AS, THE DECISION RELIED UPON BY T HE ASSESSEE IN THE CASE OF IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS. (CIVIL APPEAL NOO.2395 OF 2008) IS CONCERNED , IT WAS POINTED OUT THAT IN THAT CASE THE DELAY OF TWO MONT HS, WHEREAS, IN THE PRESENT APPEAL, THERE IS DELAY OF 6 18 DAYS, THEREFORE, DELAY MAY NOT BE CONDONED. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE TRUST WAS GRANTED REGISTRATIO N U/S 12A OF THE ACT BY THE COMPETENT AUTHORITY ON 16/04/1990 , ON THE BASIS OF OBJECTS OF THE TRUST, WHICH WERE FOUND TO BE CHARITABLE IN NATURE. THE ITO (E)-1(1), MUMBAI, SEN T A PROPOSAL TO THE COMPETENT AUTHORITY TO CANCEL THE R EGISTRATION GRANTED TO THE ASSESSEE ON THE GROUND THAT ACTIVITI ES IN THE NATURE OF TRADE, COMMERCE OR BUSINESS ETC ARE DONE BY THE ASSESSEE, WHICH RESULTED INTO GROSS RECEIPTS, WHICH ARE IN BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 4 EXCESS OF RS.10 LAKHS, CONSEQUENTLY, IN VIEW OF PRO VISO TO SECTION 2(15) OF THE ACT, THE MATTER WAS CONSIDERED AND A SHOW-CAUSE NOTICE VIDE ORDER DATED 14/10/2011 WAS S ERVED UPON THE ASSESSEE. THE ASSESSEE WAS ASKED AS TO WH Y THE REGISTRATION GRANTED TO IT SHOULD NOT BE WITHDRAWN INVOKING THE PROVISIONS OF SECTION 12AA(3) OF THE ACT. IN TH E SHOW- CAUSE NOTICE, THE ACTIVITIES CARRIED OUT BY THE ASS ESSEE WERE ALSO ENCLOSED WHICH WERE FOUND IN THE NATURE OF TRA DE, COMMERCE AND BUSINESS ETC. FROM THE DETAILS OF INC OME AND EXPENDITURE ACCOUNT, FILED BY THE ASSESSEE, IT WAS FOUND THAT THE ASSESSEE EARNED INCOME OF RS.219.50 LAKHS BY WA Y OF MEMBERSHIPS SUBSCRIPTIONS, RS.284.38 LAKHS BY WAY O F RENTS, RS.167.2 LAKHS AS ROYALTY, RS.22.88 LAKHS AS INCOME FROM CAMPS, RS.28.28 LAKH FROM SALE OF DAILY TICKETS, RS .43.65 LAKHS AS MISCELLANEOUS INCOME AND RS.11.67 LAKHS AS INSTRUCTION FEES. IN THE SHOW-CAUSE NOTICE, ATTENTI ON WAS DRAWN TO THE NEWLY INSERTED PROVISION TO SECTION 2( 15) OF THE ACT WHICH WAS APPLICABLE FROM A.Y. 2009-10 ONWARDS. IN RESPONSE TO THE SHOW-CAUSE NOTICE, NEITHER THE ASSE SSEE RESPONDED NOR FILED ANY WRITTEN SUBMISSIONS. THE A SSESSEE WAS GIVEN FINAL OPPORTUNITY VIDE LETTER DATED 07/12 /2011 EITHER TO APPEAR PERSONALLY OR MAKE SUBMISSIONS, IF ANY, UP TO 13/12/2011. THE ASSESSEE DID NOT MAKE ANY COMPLI ANCE TO THIS LETTER/SHOW-CAUSE NOTICE ALSO. IN VIEW OF THESE FACTS, REASONABLY, IT WAS PRESUMED THAT THE ASSESSEE HAS N OTHING TO SAY, CONSEQUENTLY, IT WAS HELD THAT THE OBJECTS OF THE TRUST HAS BECOME NON-GENUINE FOR THE PURPOSES OF SECTION 11, THEREFORE, THE REGISTRATION GRANTED TO THE ASSESSEE U/S 12AA BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 5 OF THE ACT WAS CANCELED/WITHDRAWN W.E.F. A.Y. 2009- 10 BY TREATING THE ASSESSEE AS NON-CHARITABLE TRUST/INSTI TUTION. 2.3. AGAINST THE AFORESAID ORDER, DATED 23/12/2011 , OF CANCELATION OF REGISTRATION, THE ASSESSEE WAS TO FI LE THE APPEAL WITHIN 60 DAYS FROM THE RECEIPT OF THE ORDER. AS P ER THE APPLICATION/AFFIDAVIT FILED BEFORE US, THE WORK OF FILING THE APPEAL AGAINST THE AFORESAID ORDER WAS ENTRUSTED TO THE THEN CHARTERED ACCOUNTANT OF THE ASSESSEE TRUST, HOWEVER , HE ADVISED, AS PER THE ASSESSEE, NOT TO FILE AN APPEAL BEFORE THIS TRIBUNAL. THE ASSESSEE ACTED UPON THIS ADVICE AND PREFERRED NOT TO FILE AN APPEAL AND REMAINED SILENT. HOWEVER , AS PER THE ASSESSEE, ANOTHER ADVICE WAS GIVEN TO THE ASSES SEE ON WHICH THE ASSESSEE FILED APPEAL ON 31/10/2013 WHICH RESULTED INTO HUGE DELAY OF 618 DAYS. 2.4. NOW, QUESTION ARISES, WHETHER THERE IS BONA-F IDE DELAY, WHICH SHOULD BE CONDONED. BEFORE COMING TO ANY CONCLUSION, WE ARE EXPECTED TO ANALYZE THE EVENTS W HICH CAUSED THE DELAY. THE ASSESSEE HAS NOT CONTRADICTE D THE RECEIPTS/AMOUNTS AS HAS BEEN MENTIONED ABOVE. HOWEV ER, WE ARE NOT GOING INTO THE MERITS OF THE APPEAL AT THIS STAGE SINCE WE ARE ONLY ANALYZING WHETHER THERE WERE BONA-FIDE REASONS, ON THE PART OF THE ASSESSEE, IN FILING THE APPEAL L ET BY 618 DAYS. AS MENTIONED EARLIER, THE ASSESSEE RECEIVED THE ORDER DATED 23/12/2011 IN THE MONTH OF DECEMBER 2011 (NO SPECIFIC DATE HAS BEEN MENTIONED BY THE ASSESSEE) A ND THE ASSESSEE WAS TO FILE THE APPEAL AGAINST THE ORDER W ITHIN 60 DAYS FROM THE RECEIPT OF ORDER U/S 12AA(3) OF THE A CT. AS PER BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 6 THE ASSESSEE, A DECISION WAS TAKEN NOT TO FILE THE APPEAL AGAINST CANCELATION OF REGISTRATION BY THE COMPETEN T AUTHORITY, ON THE ADVICE OF THEIR CHARTERED ACCOUNT ANT. FIRSTLY, IT IS NOTEWORTHY THAT NO SUCH ADVICE HAS B EEN PLACED ON RECORD AND SECONDLY, EVEN IF THE ASSESSEE ACTED ON THE ADVICE OF THE CHARTERED ACCOUNTANT, IT WAS A CONSCI OUS DECISION OF THE ASSESSEE NOT TO FILE AN APPEAL, PRE SUMABLY, KNOWING FULLY WELL THAT THE ASSESSEE IS DOING ITS A CTIVITIES WHICH ARE CONTRARY TO THE OBJECTS CONTAINED IN THE TRUST DEED AND FURTHER THE AMENDMENT MADE IN THE ACT. THE ASS ESSEE REMAINED SILENT FOR ABOUT 20 MONTHS (618 DAYS) AND THEREAFTER, ON SECOND ADVICE, AS CLAIMED BY THE ASS ESSEE, FILED APPEAL BEFORE THIS TRIBUNAL. ONE FACT IS CLEARLY OO ZING OUT THAT FIRSTLY NOT FILING AND THEREAFTER FILING THE A PPEAL WAS A CONSCIOUS DECISION OF THE ASSESSEE. IN SUCH AS SITU ATION, THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF B.S. INTERNATIONAL (ITA NO.4683/MUM/2012), ORDER DA TED 26/10/2015, SUPPORTS THE CASE OF THE REVENUE. THE R ELEVANT PORTION OF THE SAME IS REPRODUCED HEREUNDER FOR RE ADY REFERENCE:- 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 BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 7 OUTSET, THE LD. DR, POINTED OUT THAT THIS APPEAL IS TIME BARRED BY 1625 DAYS. THE LD. COUNSEL FOR THE ASSESSEE INVITE D OUR ATTENTION TO THE APPLICATION DATED 10/12/2012, FILED BY THE A SSESSEE, FOR CONDONING THE DELAY ALONG WITH AN AFFIDAVIT FILED B Y THE MANAGING PARTNER OF THE ASSESSEE FIRM. THE CONTENT ION OF THE ASSESSEE IS THAT THERE IS SUFFICIENT REASON FOR THE DELAY WHICH MAY BE CONDONED. HOWEVER, THE LD. DR, STRONGLY OPP OSED THE DELAY BY CONTENDING THAT THERE IS NO REASONABLE CAU SE 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 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 AS SESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREI NAFTER THE ACT) WAS PASSED ON 27/02/2006 DISALLOWING THE CLAIM ED 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 DISALLOWING THE CLA IMED 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 BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 8 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 JUSTIC E DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE D ELAY. 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 I S NOT BECAUSE ON THE EXPIRY OF SUCH TIME A BAD CAUSE WOUL D TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITATION ARE NOT MEAN T TO DESTROY THE RIGHTS OF PARTIES. THEY ARE MEANT TO SEE THAT P ARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY P ROMPTLY. 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 INJU RY SO SUFFERED. THE LAW OF LIMITATION IS THUS FOUNDED ON PUBLIC POL ICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LIT IGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF T HE PARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILA TORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 9 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 G IVEN FOR CONDONING DELAY, THEN THE AFFIDAVIT CAN BE ACCEPTED AS EVIDENCE. 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 WAS N OT 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 SUCC OUR. HERE, WE FIND SOME TRUTH IN WHAT THE PETITIONER HAD STATED I N SO FAR AS HE HAS APPROACHED THIS COURT BY FILING ORIGINAL PETITI ON. IT WOULD HAVE BEEN BETTER, IF SOME EVIDENCE WAS GIVEN REGARD ING HIS CASE THAT THE PARTICULAR ADVOCATE DID NOT FILE APPEALS. BUT THE COURT CAN TAKE JUDICIAL NOTICE OF THE DIFFICULTY IN GETTI NG 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 REPRES ENTATIVE OF THE ASSESSEE, WHO KEPT THE ORDER IN THE DRAWER AND THEREAFTER THE ASSESSEE MET WITH AN ACCIDENT AND COULD NOT ATT END THE OFFICE. THE APPEAL WAS FILED BY THE ASSESSEE ON 25/ 05/2012, BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 10 WHICH RESULTED INTO DELAY OF 1625 DAYS. IN THE APP LICATION OF THE ASSESSEE (IN PARA-3), IT HAS BEEN MENTIONED THAT TH E ORDER OF THE LD. FIRST APPELLATE AUTHORITY WAS RECEIVED BY THE O FFICE ASSISTANT, WHEREAS, IN THE AFFIDAVIT, THE ORDER WAS CLAIMED TO BE RECEIVED BY THE PEON OF THE FIRM, THEREFORE, THE CLAIM OF THE A SSESSEE IS ITSELF 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 ASSESSEE WAS HAVIN G SUFFICIENT TIME TO FILE THE APPEAL. IT IS ALSO NOTED THAT THE ASSESSEE WAS ATTENDING OTHER APPEALS AND ONLY WHEN THE RECOVERY NOTICE WAS SENT TO THE ASSESSEE BY THE DEPARTMENT, THE ASSESSE E TOOK A DECISION TO FILE THE APPEAL. IT IS ALSO NOTED THA T EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS BEFORE THE LD. ASSESSING OFFICER, THE ASSESSEE WAS REPRESENTED BY AUTHORIZED REPRESENTATIVE, MEANING THEREBY, THE ASS ESSEE WAS WELL EQUIPPED WITH THE ADVICE OF THE LEGAL REPRESEN TATIVES AND EVEN OTHERWISE, THE APPEAL WAS TO BE PREPARED/FILED BY THE REPRESENTATIVES AND NOT BY THE ASSESSEE. IT IS NOT THE CASE THAT THE ASSESSEE WAS NOT IN A POSITION TO EVEN SIGN THE DOCUMENTS/APPEAL MEMO. IT WAS CLEARLY A CASE OF CON SCIOUS DECISION NOT TO FILE THE APPEAL AT EARLY STAGE AND TO FILE THE APPEAL AT THE LATER STAGE. THE ASSESSEE WAS HAVING SUFFICI ENT TIME AND WAS NOT PREVENTED BY ANY SUFFICIENT CAUSE. IT IS N OT A CASE OF SMALL DELAY RATHER DELAY OF 1625 DAYS ( FOUR YEAR A ND FORTY FIVE DAYS). BROADLY, WE ARE OF THE VIEW, THAT SUCH A HUG E DELAY THAT TOO IN THE ABSENCE OF PLAUSIBLE REASONING, SHOULD N OT BE CONDONED. THE ASSESSEE HAS NOT EXPLAINED PROPERLY T HE REASON OF DELAY, WHICH THE ASSESSEE, OTHERWISE, EXPECTED TO A DDUCE THE DELAY WITH DOCUMENTARY EVIDENCE. THIS IS A CLEAR C UT CASE OF DELIBERATE DELAY OR CONSCIOUSLY FILING THE DELAY AF TER SUCH A LONG TIME. AS PER PROVISION OF SECTION 253(3), (3)A OF THE ACT, THE BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 11 ASSESSEE IS TO FILE THE APPEAL WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE ORDER OF THE LD. FIRST APPELLATE AUT HORITY, WHEREAS, THE ASSESSEE FILED THE APPEAL AFTER 1625 DAYS, WHIC H IS EVEN BEYOND IMAGINATION, ESPECIALLY WHEN, THE ASSESSEE H AS NOT EXPLAINED THE REASON OF DELAY. WE ARE AWARE THAT TH E PRIMARY FUNCTION OF THE COURT IS TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES AND TO ADVANCE SUBSTANTIAL JUSTICE. THE ID EA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLA TIVELY FIXED PERIOD OF TIME BUT AT THE SAME TIME IT IS EQUALLY I MPORTANT TO NOTE WHETHER THE ASSESSEE HAS DULY EXPLAINED THE RE ASON OF DELAY. THE HONBLE COURT IN VASU & COMPANY VS STAT E OF KERALA HAS CLEARLY MENTIONED THAT IF THE PETITIONER IS NEG LIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME TO HIS RESCUE. THIS IS EXACTLY THE CASE BEFORE US. THE LAW OF LIMITATION F IXES A LIFE SPAN FOR SUCH LEGAL REMEDIES FOR THE REDRESSAL OF A LEGA L INJURY, IF ANY, SUFFERED BY THE ASSESSEE. HOWEVER, IN THE PRESENT A PPEAL, THERE IS A CLEAR CUT 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 HONBLE APEX COURT IN COLLECTOR, LAND ACQUISITION V S KATIJI (SUPRA) HAS CLEARLY MENTIONED ABOUT NON-DELIBERATE DELAY. THUS, IN OUR HUMBLE OPINION, THE CASES RELIED BY THE ASSE SSEE CANNOT COME TO THE RESCUE OF THE ASSESSEE, BECAUSE THE AS SESSEE HAS NOT ADDUCED ANY EVIDENCE/REASON, SUBSTANTIATING THA T THE DELAY WAS CAUSED DUE TO THE REASONS WHICH WERE BEYOND HIS /ITS 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 VAIJ AYANATABAI BABURAO VS SHANTARMA BAVURAO PATIL REPORTED IN (200 2) 253 ITR 798 (SC) MADE A DISTINCTION IN DELAY AND INORDINATE DELAY OBSERVED (PAGE 799) AS UNDER:- BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 12 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 CA SE 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 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 THE DELAY CANNOT BE SUSTAINED. THIS APPEAL, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY, THE APPLICATION FOR CONDON ATION OF DELAY FILED BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 13 IN THE HIGH COURT WOULD STAND REJECTED AND THE MISC ELLANEOUS 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 APPROPR IATE REASONS, IN THAT EVENT IT CANNOT 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 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, HELD 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 TR IBUNAL 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 EXERCISED T HEIR DISCRETION AND WE FIND NOTHING PERVERSE IN THE IMPUGNED ORDERS. SP ECIFIC REASONS HAVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT EVEN REFLECT THE CONDUCT OF THE APPELLANT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD IN SPITE OF SEEKING TIME. BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 14 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 POWE RS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAM E FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTROVER SY A QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE AUTHORITY IS I N CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTLY A PRUDENT ONE, T HE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE NOT ABLE TO APPRECIATE THE CONTENTION OF LEARNED CO UNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS APPLIED WRONG PRIN CIPLES 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 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 DECISION FIRSTLY , NOT TO FILE THE BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 15 APPEAL AGAINST THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY AND THEREAFTER TOOK A DECISION TO FILE THE APPEAL. IT IS NOT THE CASE OF DELAY WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. SO FAR AS, THE AFFIDAVIT IS CONCERNED, IT IS A SELF SERVING DO CUMENT AND THE ASSESSEE HAS NOT EXPLAINED SATISFACTORILY THE REASO N OF DELAY IN FILING THE APPEAL. THE ASSESSEE WAS WILFULLY NEGLIG ENT OR IRRESPONSIBLE IN TAKING A DECISION, THUS, THE HUGE DELAY CANNOT BE CONDONED. WE ARE CONSCIOUS OF THE FACT THAT TEC HNICALITIES SHOULD NOT COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE BUT IN CASES, WHERE THE DELAY WAS BEYOND THE CONTROL OF TH E ASSESSEE OR SOME 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, THERE FORE, ON THIS ISSUE, WE ARE NOT AGREEING WITH THE ADMISSION OF TH IS APPEAL, THUS, THE DELAY IS NOT CONDONED, THEREFORE, THE APP EAL IS DISMISSED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED AS NOT ADMITTED. WE NOTE THAT IN THE AFORESAID ORDER, THE BENCH HAS DISCUSSED VARIOUS JUDICIAL PRONOUNCEMENTS, ALONG WI TH THE PROVISIONS OF LIMITATION ACT. HOWEVER, IN THE CAS E BEFORE US, NEITHER THE ASSESSEE HAS EXPLAINED THE PLAUSIBLE RE ASONS FOR THE DELAY NOR PRODUCED ANY EVIDENCE ON THE BASIS OF WHICH LENIENT VIEW MAY BE TAKEN. IT IS NOT THE CASE OF D ELAY WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. SO FAR AS, THE AFFIDAVIT IS CONCERNED, IT IS A SELF SERVING DOCUMENT AND THE ASSESSEE HAS NOT EXPLAINED SATISFACTORILY THE REASON OF DELA Y IN FILING THE APPEAL. THE ASSESSEE WAS WILFULLY NEGLIGENT OR IRRE SPONSIBLE IN TAKING A DECISION, THUS, THE HUGE DELAY CANNOT BE C ONDONED. BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 16 WE ARE CONSCIOUS OF THE FACT THAT TECHNICALITIES SH OULD NOT COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE BUT IN CASES, WHERE THE DELAY WAS BEYOND THE CONTROL OF THE ASSES SEE OR SOME GENUINE DIFFICULTIES HINDERED HIS SMOOTH WAY. THE FULL BENCH OF THE ORISSA HIGH COURT, IN THE CASE OF BRAJ ABANDHU NANDA V. CIT [1962] 44 ITR 668, CONSIDERING SOMEWH AT SIMILAR QUESTION, WHERE THE APPEAL WAS BARRED BY TI ME AND REFERENCE OF THE QUESTION WAS DECLINED, HELD AS UND ER (HEADNOTE) : THAT THE QUESTIONS REFERRED WERE NOT QUESTIONS OF LAW BUT QUESTIONS OF FACT SINCE IT WAS A MATTER OF DISCRETION FOR THE TR IBUNAL 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 EXERCISED T HEIR DISCRETION AND WE FIND NOTHING PERVERSE IN THE IMPUGNED ORDERS. SP ECIFIC REASONS HAVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT EVEN 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 POWE RS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAM E FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTROVER SY A QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE AUTHORITY IS I N CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTLY A PRUDENT ONE, T HE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 17 NOT ABLE TO APPRECIATE THE CONTENTION OF LEARNED CO UNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS APPLIED WRONG PRIN CIPLES 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 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). IN THE AFORESAID DECISIO N OF THE TRIBUNAL, WHEREIN ONE OF US (JUDICIAL MEMBER) IS SI GNATORY TO THE ORDER HAS DISCUSSED VARIOUS JUDICIAL PRONOUNCEM ENTS/ FACTS OF THE CASE AND THEN REACHED TO A CONCLUSION, THEREFORE, THE SAME ARE NOT BEING REPEATED HERE IN THIS ORDER, BEING MATTER OF RECORD. SO FAR AS, THE DECISION FROM HON BLE APEX COURT IN THE CASE OF IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS. (CIVIL APPEAL NO.2395 AND 2397 OF 2008 ) IS CONCERNED, WE NOTE THAT THE FACTS ARE CLEARLY DISTI NGUISHABLE BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 18 AND THERE WAS DELAY OF ONLY TWO MONTHS AND FEW DAYS . IN THE PRESENT APPEAL, THE ASSESSEE HAS NOT STATED ANY GOO D AND SUFFICIENT REASON TO CONDONE THE DELAY. THE MALAF IDE OF THE ASSESSEE ARE CLEARLY VISIBLE IN THE PRESENT APPEAL. IT IS ALSO WORTH MENTIONING THAT THE ASSESSEE IS ASSISTED BY Q UALIFIED CHARTERED ACCOUNTANT, WHO ADVICE THE ASSESSEE NOT T O FILE THE APPEAL AT THE FIRST INSTANCE AND AFTER A HUGE DELAY THE APPEAL WAS FILED BY THE ASSESSEE. IT IS NOT THE CASE THAT THE ASSESSEE IS A LAYMAN AND NOT AWARE ABOUT THE PROCEDURE OF TECHN ICALITIES OF LAW. THE TOTALITY OF FACTS, CLEARLY INDICATES T HAT IT IS A CLEAR CUT CASE OF CONSCIOUS DECISION, THUS, WE FIND NO ME RIT IN THE SELF MADE STORY OF THE ASSESSEE, CONSEQUENTLY, ON T HE ISSUE OF CONDONATION OF DELAY, WE ARE NOT AGREEING WITH THE SUBMISSION OF THE ASSESSEE, THUS, THE DELAY IS NOT CONDONED, T HEREFORE, THE APPEAL IS DISMISSED AS NOT ADMITTED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED AS NOT ADMITTED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 26/10/2015. SD/- SD/- ( RAJESH KUMAR ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; ( DATED : 20/11/2015 F{X~{T? P.S/. .. !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN ITA NO.6417/MUM/2013 19 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.