ANANT B. SHINDE HUF, MUMBAI V. I.T.O.24(1)(3), MUMBAI

ITA 6488/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3404 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 23-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice; Period of limitation; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER & SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.:6488/MUM/2012 ASSESSMENT YEAR: 2007-08 ANANT B SHINDE (HUF), VS. THE ITO 24(1)(3), A-603, WHISPERING HEIGHTS, MUMBAI MINDSPACE, CHINCHOLI BUNDER ROAD, MALAD (W), MUMBAI- 400 064 PAN : AADHA5440H (APPELLANT) (RESPONDENT) APPELLANT BY : MR.K GOPAL RESPONDENT BY : MR.MANOJ KUMAR DATE OF HEARING : 18.03.2013 DATE OF PRONOUNCEMENT : 17.05.2013 ORDER PER SANJAY GARG, JM : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LEARNED CIT(A) DATED 11.09.2012 RELEVANT TO A.Y. 2007-08. THE MAIN GROUND OF APPEAL HAS BEEN RAISED AGAINST THE CONFIRMATION OF ADDITION BY THE CIT(A) OF RS.54,55,019/- MADE BY THE AO ON ACCOUNT OF UNPROVED SUNDRY CREDIT ORS. DURING THE PENDENCY OF APPEAL, THE ASSESSEE HAS TAKEN ADDITIONAL GROUND AG AINST THE DISMISSAL OF APPEAL BY THE CIT(A) BEING BARRED BY LIMITATION. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E- HUF, FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARING T OTAL INCOME OF RS.1,47,714/- DURING THE ASSESSMENT PROCEEDINGS U/S. 143(3) OF TH E I.T.ACT, THE AO NOTICED THAT THE ASSESSEE HAD SHOWN CREDITORS AT RS.55,03,412/- WHEREAS AS PER DETAILS FILED THE CREDITORS WERE SHOWN AT RS.48,393/- THE AO CALLED FOR THE EXPLANATION IN THIS ITA NO. 6488/MUM/2012 AY : 2007-08 2 RESPECT AND VARIOUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE. HOWEVER, INSPITE OF AVAILING SUFFICIENT OPPORTUNITIES THE ASSESSEE DID NOT FILE THE DETAILS OF SUNDRY CREDITORS AND DEBTORS AND, THUS, IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE, THE AO TREATE D THE AMOUNT OF RS.54,55,019/- (RS.55,03,412 RS.48,393) AS UNEXPLAINED CREDITS A ND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THE ASSESSEE PREFERRED APP EAL BEFORE THE LEARNED CIT(A) BUT THE SAME WAS FILED WITH A DELAY OF NINE MONTHS AND 4 DAYS (278 DAYS). 3. BEFORE THE LEARNED CIT(A) THE ASSESSEE FILED A L ETTER DATED 07.07.2011 FOR CONDONATION OF DELAY. THE CONTENTS OF THE LETTER A RE REPRODUCED AS UNDER: I, MR. ANAND B SHINDE, BEING KARTA OF MR. ANAND B SHINDE H.U.F. IS ATTENDING BUSINESS AND I.T. MATTERS FROM TIME TO TIME. I COULD NOT FILE MY APPEAL IN TIME AS I AM THE ONLY ONE SON TO LOOK AFTER MY AGED MOTHER NAMELY: (1) MRS. GANGUBAI BABURAO SHINDE (MOTHER) MY MOTHER WAS NOT KEEPING GOOD HEALTH FOR LAST SO M ANY YEARS. MY MOTHER DIED AT THE AGE OF 87 YEARS. I WAS REQUIR ED TO ATTEND MY MOTHER FROM TIME TO TIME TILL HER DEATH. I WAS BADLY SHOCKED AT MY MOTHERS DEATH WAS REQUIRED TO ATTEND LAST RITES AND RITUALS OF HINDU CULTURE. ALL THESE PROBLEMS DELAY ED MY FILING OF APPEAL (DEATH CERTIFICATE ENCLOSED) I REQUEST YOUR HONOUR TO REMAND BACK THIS MATTER TO THE ITO AND SET ASIDE THE ORDER PASSED BY THE ITO OR MAY BE GIVEN CHANCE TO PRESENT MY CASE BEFORE YOUR HONOUR. I REQUEST YOUR HONOUR TO GIVE ME LAST CHANCE TO ATTE ND MY IT MATTERS. I REQUEST YOUR HONOUR TO GIVE ME CHANCE TO GET NATURAL JUSTICE IN THIS MATTER. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAD PRODU CED BEFORE THE CIT(A) A COPY OF DEATH CERTIFICATE OF MOTHER OF MR. ANANT B SHINDE KARTA OF ASSESSEE HUF. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSMENT IN THE CASE WAS COMPLETED ON 21.12.2009. SUFFICIENT OPPORTUNITIES WERE GRANTED BY THE AO TO THE ASSESSEE TO ITA NO. 6488/MUM/2012 AY : 2007-08 3 FURNISH THE REQUIRED DETAILS. EVEN WHEN THE REPRES ENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO ON 4.12.2009, AT THAT TIME ALSO IT WA S MADE CLEAR TO HIM THAT IN THE ABSENCE OF FURNISHING OF FULL DETAILS THE ASSESSMEN T WOULD BE COMPLETED ON THE BASIS OF THE MATERIAL ON RECORD. INSPITE OF THAT, THE RE QUIRED DETAILS WERE WITHHELD BY THE ASSESSEE, WHICH LEAD TO THE ADDITION. THE LEARNED CIT(A) FURTHER OBSERVED THAT THE APPEAL HAD BEEN FILED ON 15.11.2010 WHEREAS THE ASS ESSMENT WAS COMPLETED ON 21.12.2009. THE ASSESSMENT ORDER WAS SERVED ON THE ASSESSEE ON 12.01.2010. THE APPEAL SHOULD HAVE BEEN FILED BEFORE 12.02.2010 AND , THUS, THERE WAS A DELAY OF NINE MONTHS AND FOUR DAYS (278 DAYS). THE LEARNED CIT(A) FURTHER OBSERVED THAT AS PER THE DEATH CERTIFICATE OF SMT. GANGUBHAI BABURAO SHINDE- MOTHER OF THE KARTA OF THE ASSESSEE- HUF, THE DATE OF HER DEATH WAS 23.12. 2008 WHEREAS THE ASSESSMENT ITSELF WAS COMPLETED ALMOST A YEAR AFTER HER DEATH. THE CLAIM OF THE ASSESSEE THAT PERFORMING LAST RITES AND RITUALS WAS THE CAUSE OF DELAY IN FILING OF APPEAL WAS FOUND WRONG AND FALSE. THE LEARNED CIT(A) OBSERVED THAT THE KARTA OF THE ASSESSEE- HUF MIGHT HAVE PERFORMED THE LAST RITES IN DECEMBER 200 8 ITSELF, WHEREAS THE ASSESSMENT WAS COMPLETED IN THE MONTH OF DECEMBER 2 009. THE LEARNED CIT(A) FURTHER OBSERVED THAT THE ASSESSEE FAILED TO REASON ABLY EXPLAIN THE REASONS FOR CONDONING THE DELAY AND THERE WAS NEGLIGENCE, INACT ION AND WANT OF BONA FIDE ON THE PART OF THE ASSESSEE AND THERE WAS NO CASE OF E XERCISE OF JUDICIAL DISCRETION IN FAVOUR OF THE ASSESSEE. WHILE DISMISSING THE APPEA L OF THE ASSESSEE BEING BARRED BY LIMITATION THE LEARNED CIT(A) RELIED UPON THE FOLLO WING AUTHORITIES: ADVANI (J.B) AND CO. (P) LTD. V. SHAH R.D., CIT 72 ITR 395 (SC) VINAY EXTRACTION P. LTD. V. VIJAY KHANNA 271 ITR 45 0 (GUJ) FORAMER FRANCE V. DCIT 002 ITR (TRIB) ITAT SURINDER KUMAR BOVEJA V. CWT 287 ITR 450 (GUJ) CIT V. ORISSA CONCRETE AND ALLIED INDUSTRIES LTD. 2 64 ITR 186 (CAL) M.LOGANATHAN V. CIT 302 ITR 139 (MAD) 4. BEFORE US THE ASSESSEE HAS TAKEN AN ADDITIONAL G ROUND TO THE EFFECT THAT THE LEARNED CIT(A) OUGHT NOT HAVE DISMISSED THE APPEAL OF THE ASSESSEE ON LIMITATION GROUND. SURPRISINGLY, THE ASSESSEE BEFORE US RESIL ED FROM ITS EARLIER STAND TAKEN BEFORE THE LEARNED CIT(A) AS TO THE CAUSE FOR THE D ELAY IN FILING THE APPEAL. NOW HE ITA NO. 6488/MUM/2012 AY : 2007-08 4 HAS COME WITH A NEW EXPLANATION TO THE EFFECT THAT HE WAS WRONGLY ADVISED BY HIS TAX CONSULTANT LATE MR. J.N.DAYA TO TAKE A WRONG PLEA BEFORE THE LEARNED CIT(A). HE WAS ADVISED TO EXPLAIN THE DELAY CITING THE REAS ON OF ILLNESS AND SUBSEQUENT DEATH OF THE MOTHER OF THE KARTA OF THE ASSESSEE WH EREAS THE DELAY WAS CAUSED DUE TO NEGLIGENCE OF THE CONSULTANT HIMSELF. AS THE AS SESSEE WAS DEPENDANT ON THE CONSULTANT, HE ACCEPTED HIS ADVICE PER FORCE AND TO OK A WRONG PLEA BEFORE THE LEARNED CIT(A) FOR CONDONATION OF DELAY. THE SAID TAX CONSULTANT HAS PASSED AWAY ON 06.01.2013, HENCE THE TRUE FACTS HAVE BEEN BROUG HT BEFORE THIS TRIBUNAL. THE CAUSE OF DELAY WAS DUE TO THE REASONS BEYOND THE CO NTROL OF THE ASSESSEE. IN SUPPORT OF ITS CONTENTION BEFORE US, THE ASSESSEE H AS FILED AN AFFIDAVIT OF MR. ANANT B.SHINDE, KARTA OF THE ASSESSEE HUF. 5. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY THE L EARNED AR BEFORE US. IT MAY BE OBSERVED THAT THE CONDUCT OF THE ASSESSEE HA D NOT BEEN FAIR SINCE INCEPTION OF THE PROCEEDINGS. EARLIER HE DID NOT FURNISH THE REQUIRED DETAILS AND REMAINED RELUCTANT TO ATTEND THE PROCEEDINGS BEFORE THE AO A ND ULTIMATELY THE AO WAS FORCED TO PASS THE ASSESSMENT ORDER ON THE BASIS OF AVAILA BLE EVIDENCE ON THE FILE AS PER HIS BEST JUDGMENT. THEREAFTER, HE TOOK A DELIBERATE WR ONG AND FALSE PLEA BEFORE THE LEARNED CIT(A) REGARDING THE DELAY IN FILING THE AP PEAL BEFORE HIM. THE LEARNED CIT(A) FOUND THAT THE MOTHER OF THE KARTA OF THE HU F HAD EXPIRED ALMOST ONE YEAR EARLIER FROM THE DATE OF COMPLETION OF ASSESSMENT, AND THUS HE CONCLUDED THAT THERE WAS NO SUFFICIENT CAUSE FOR CONDONATION OF THE DELA Y. THE ASSESSEE NOW HAS TAKEN A NEW PLEA THAT IN FACT THERE WAS NEGLIGENCE AND INAC TION ON THE PART OF HIS TAX CONSULTANT MR. J.N.DAYA, WHEN THE SAID CONSULTANT I S NO MORE IN THIS WORLD. BEFORE US IT HAS BEEN MENTIONED IN THE AFFIDAVIT THAT THE ASSESSEE HAD RECEIVED ASSESSMENT ORDER ON 12.01.2010 AND THE SAME WAS GIVEN TO THE T AX CONSULTANT FOR FURTHER COURSE OF ACTION. HOWEVER, THERE IS NOT MENTION IN THE AF FIDAVIT THAT THE ASSESSEE HAD EVER INSTRUCTED HIS REPRESENTATIVE TO FILE AN APPEAL BEF ORE THE CIT(A). EVEN THE ASSESSEE THEREAFTER NEVER ENQUIRED FROM THE CONSULTANT AS TO WHAT ACTION HAD BEEN TAKEN BY HIM AFTER RECEIPT OF THE SAID ASSESSMENT ORDER FROM THE ASSESSEE. THE ASSESSEE NEVER ENQUIRED WHETHER ANY APPEAL WAS PREPARED, DRA FTED OR THE SIGNATURES OF THE ITA NO. 6488/MUM/2012 AY : 2007-08 5 KARTA WERE REQUIRED FOR FILING OF THE APPEAL. THE REQUIREMENT OF LAW IS THAT IT IS TO BE LOOKED INTO AS TO OUT OF REASONS GIVEN BY THE AP PLICANT FOR CONDONATION OF DELAY, WHETHER THE APPLICANT HAD ACTED WITH REASONABLE DIL IGENCE IN PROSECUTING ITS APPEAL AND WHETHER IT WAS PREVENTED BY SUFFICIENT CAUSE FO R NOT FILING ITS APPEAL WITHIN THE PERIOD OF LIMITATION AS PRESCRIBED BY LAW. IT MAY BE OBSERVED THAT THE DIFFERENT EXPLANATIONS PUT-FORTH BY THE ASSESSEE DO NOT CONST ITUTE SUFFICIENT CAUSE AS REQUIRED BY LAW. THERE IS NO EXPLANATION AS TO WHY THE ASSE SSEE DID NOT BOTHER TO LOOK INTO THE MATTER FOR LONG PERIOD OF NINE MONTHS AND FOUR DAYS. EVEN THE ASSESSEE HAD TRIED TO MISLEAD THE LEARNED CIT(A) BY TAKING A WRO NG PLEA BEFORE HIM CITING THE DEATH OF MOTHER OF KARTA OF HUF AS THE CAUSE OF DEL AY, WHICH PROVED TO BE WRONG. THE ASSESSEE DID NOT PUT TRUE FACTS BEFORE THE LEAR NED CIT(A). EVEN THE EXPLANATION PUT-FORTH BEFORE US DOES NOT JUSTIFY THE ACT AND CO NDUCT OF THE ASSESSEE IN THIS RESPECT. THE KARTA OF THE ASSESSEE (HUF) HAS PUT A LLEGATIONS ON HIS CONSULTANT TO THE EFFECT THAT THERE WAS NEGLIGENCE ON HIS PART AN D ON HIS ADVICE HE PUT A WRONG PLEA BEFORE THE LEARNED CIT(A). WE HAVE NO HESITAT ION TO HOLD THAT IT WAS FOR THE ASSESSEE TO REASONABLY APPLY HIS MIND AND NOT FILE ANY LETTER BASED ON WRONG AND FALSE FACTS. THE ASSESSEE WAS SUPPOSED TO GIVE TRU E FACTS TO THE FIRST APPELLATE AUTHORITY. THE ASSESSEE HUF THROUGH ITS KARTA DELI BERATELY TOOK A WRONG AND FALSE PLEA AND WHEN IT COULD NOT SUCCEED IN MISGUIDING TH E AUTHORITY BELOW, NOW HAS TRIED TO PUT ALL THE BURDEN OF ITS MISCONDUCT ON THE CONS ULTANT, WHO IS NO MORE IN THIS WORLD TO DEFEND THE ALLEGATIONS. A PERSON WHO DO ES NOT COME TO THE COURT WITH CLEAN HANDS DOES NOT DESERVE ANY DISCRETIONARY FA VOUR ON THE GROUND OF EQUITY AND NATURAL JUSTICE. HE WHO SEEKS EQUITY MUST DO EQU ITY. EVEN IF WE ACCEPT THE CONTENTION OF THE ASSESSEE THAT IT WAS WRONGLY ADVISED BY ITS CONSULTANT AND THE DELAY OF MORE THAN NINE MONTHS WAS DUE TO THE NEGLIGENCE ON THE PART O F ITS CONSULTANT, STILL THERE IS NO EXPLANATION AS TO WHY THE ASSESSEE DID NOT ENQU IRE FROM THE CONSULTANT ABOUT THE FILING OF APPEAL AND WHY IT DID NOT BOTHER TO LOOK IN TO THE MATTER FOR SUCH A LONG TIME. EVEN IF WE ADMIT THE CONTENTION OF THE ASSESSEE PUT BEFORE US, NE GLIGENCE AND INACTION ON THE PART OF THE ASSESSEE REMAINS UNEXPLAINED . THE ASSESSEE HAS NOT ONLY TRIED TO MISGUIDE AND MISLEAD THE AUTHORITY BELOW BUT HAS ALSO TRIED TO WRIGGLE OUT HIS MISDEED BY PUTTING E NTIRE BLAME ON HIS ITA NO. 6488/MUM/2012 AY : 2007-08 6 CONSULTANT, HOWEVER IT HAS MISERABLY FAILED TO DO SO. EVEN OTHERWISE THE NEGLIGENCE ON THE PART OF THE COUNSEL WITHOUT ANY SUFFICIENT R EASON IS NOT A GROUND FOR CONDONATION OF DELAY. HONBLE PUNJAB & HARYANA HIG H COURT IN THE CASE OF KRISHAN DEV DHIMAN VS. MAHESH BHATIA AND OTHERS [RSA NO.314 2 OF 2006 DECIDED ON 08.04.2008] HAS OBSERVED AS UNDER: EVEN OTHERWISE, THE ONLY GROUND FOR CONDONATION OF DELAY IS CONTAINED IN PARAGRAPH 3 OF THE APPLICATION WHEREIN IT IS STA TED THAT THE BRIEF WAS MISPLACED BY THE CLERK OF THE COUNSEL WHO HAS NOW L EFT THE SERVICE AND ON FINDING THE FILE, THE SAME HAS BEEN FILED NOW. EVEN OTHERWISE, NO DETAILS ARE GIVEN AS TO WHEN THE CLERK OF THE COUNS EL HAS MISPLACED THE FILE, WHEN HE HAD LEFT THE SERVICE OF THE COUNSEL F OR THE APPLICANT- APPELLANT AND WHEN THE FILE HAS BEEN FOUND. LEARNED COUNSEL APPEARING FOR THE APPLICANT-APPELLA NT HAS STATED THAT IT WAS DUE TO THE FAULT OF THE CLERK THAT DELAY HAS BEEN CAUSED. I AM NOT IMPRESSED BY THIS ARGUMENT. IT IS THE DUTY OF THE PARTY ALSO TO FOLLOW HIS/HER CASE. IT CANNOT BE BELIEVED THAT THE APPLICANT- APPELLANT HAS NOT BOTHERED TO ENQUIRE ABOUT HIS CAS E FOR A PERIOD OF MORE THAN FOUR YEARS. IF HE HAS NOT TAKEN ANY INTER EST, IT IS SHEER NEGLIGENCE ON THE PART OF THE APPLICANT-APPELLANT. IN THE ABSENCE OF THERE BEING ANY DETAILS ABOUT THE MISPLACING OF THE FILE AND FINDING THE SAME, WHEN THE CLERK OF THE COUNSEL LEFT THE SERVIC E AND WHEN THE NEW CLERK/COUNSEL FOUND THE FILE, THE GROUNDS URGED IN PARAGRAPH 3 OF THE C.M.APPLICATION CANNOT BE TAKEN ON HIS FACE VALUE. FOR CONDONATION OF DELAY, TWO QUESTIONS ARE REQUIR ED TO BE SEEN (I) WHETHER THERE IS SUFFICIENT CAUSE AND IT DEPEND S FROM CASE TO CASE WHETHER IN GIVEN CIRCUMSTANCES, SUFFICIENT CAUSE HA S BEEN ESTABLISHED OR NOT? (II) WHETHER THE LAW OF LIMITATION HAS TO B E ENFORCED OR THE QUESTION OF LIMITATION SHOULD BE TAKEN ONLY AS A ME RE FORMALITY. IN THE PRESENT CASE, IT IS NOT THE CASE OF THE APPL ICANT-APPELLANT THAT AFTER THE FILE WAS MISPLACE ANY EFFORT WAS MAD E BY THE LEARNED COUNSEL OR HIS CLERK TO TRACE THE FILE. EVEN THE A PPLICANT-APPELLANT (CLIENT) DID NOT BOTHER TO ENQUIRE ABOUT HIS CASE F ROM HIS COUNSEL. THIS IS A CASE OF TOTAL CALLOUSNESS AND NEGLIGENCE ON TH E PART OF THE APPLICANT/APPELLANT. EVEN AFFIDAVIT ACCOMPANYING T HE APPLICATION CONTAINS NO COGENT DETAILS ABOUT THE DELAY. I AM NO T INCLINED TO ACCEPT THE EXPLANATION PARTICULARLY WHEN THE APPLICANT-APP ELLANT HAS MISREPRESENTED IN PARAGRAPH 2 OF THE APPLICATION TH AT CASE WAS LASTLY REFILLED ON 21.09.2004 WHEREAS THE FILE WAS RETURNE D TO HIM ON ITA NO. 6488/MUM/2012 AY : 2007-08 7 21.09.2004 WITH SOME OBJECTIONS AND THE SAME WAS RE FILLED LASTLY ON 04.07.2006. IT IS SETTLED LAW THAT RIGOUR OF LIMITATION MUST AP PLY WHERE THE STATUTE SO PROVIDES. LIMITATION CANNOT BE CONDONED ON THE GROUND OF COMPASSION OR EQUITABLE CONSIDERATIONS OR WHERE THE PARTY SEEKING CONDONATION APPEARS TO BE CALLOUS OR NEGLIGENT. MY VIEW IS FORTIFIED WITH THE FOLLOWING JUDGMENTS OF THE HONBLE APEX CO URT:- IN THE CASE OF P.K.RAMACHANDRAN VS. STATE OF KERALA AND ANOTHER (1997) 7, SUPREME COURT CASES, 556 , WHEREIN IT HAS BEEN HELD AS UNDER:- THE LAW OF LIMITATION MAY HARSHLY AFFECT A PARTY P ARTICULAR PARTY BUT IT HAS TO BE APPLIED WITH ALL ITS RIGOUR WHEN T HE STATUTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND T HE PERIOD OF LIMITATION ON EQUITABLE GROUNDS. THE DISCRETION EX ERCISED BY THE HIGH COURT WAS, THUS, NEITHER PROPER NOR JUDICIOUS. THE ORDER CONDONING THE DELAY CANNOT BE SUSTAINED. THIS APPE AL, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET A SIDE. CONSEQUENTLY, THE APPLICATION FOR CONDONATION OF DE LAY FILED IN THE HIGH COURT WOULD STAND REJECTED AND THE MISCELL ANEOUS FIRST APPEAL SHALL STAND DISMISSED AS BARRED BY TIME. IN THE CASE OF MUNICIPAL CORPORATION OF DELHI AND OTHERS VS. INTERNATIONAL SECURITY AND INTELLIGENCE AGENCY LTD. (2004) 3 SUPREME COURT CASES, 250 THE HONBLE SUPREME COURT HAS HELD AS FOLLOWS:- 21. IT HAS TO BE REMEMBERED THAT LAW OF LIMITAT ION OPERATES WITH ALL ITS RIGOUR AND EQUITABLE CONSIDER ATIONS ARE OUT OF PLACE IN APPLYING THE LAW OF LIMITATION. THE CR OSS-OBJECTOR OUGHT TO HAVE FILED APPEAL WITHIN THE PRESCRIBED PE RIOD OF LIMITATION CALCULATED FROM THE DATE OF THE ORDER IF HE WISHED TO DO SO. HAVING ALLOWED THAT OPPORTUNITY TO LAPSE HE GETS ANOTHER EXTENDED PERIOD OF LIMITATION COMMENCING FROM THE D ATE OF SERVICE OF THE NOTICE OF THE APPEAL ENABLING HIM PU TTING IN ISSUE FOR CONSIDERATION OF THE APPELLATE COURT THE SAME G ROUNDS WHICH HE COULD HAVE OTHERWISE DONE BY WAY OF FILING AN AP PEAL. THIS EXTENDED PERIOD OF LIMITATION COMMENCES FROM THE DA TE OF SERVICE OF THE NOTICE OF APPEAL AND SUCH NOTICE OUG HT TO BE IN A VALID OR COMPETENT APPEAL. IN SIMILAR CIRCUMSTANCES, IN THE CASE OF BHAGWNA VS. TARA CHAND AND OTHERS (CM NO.11634 C OF 2007 IN RSA NO.4122 O F 2007) DECIDED ON 18.01.2008, CONDONATION OF DELAY IN REFI LLING THE APPEAL HAS BEEN DISMISSED. ITA NO. 6488/MUM/2012 AY : 2007-08 8 THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF G RAMEGOWDA, MAJOR VS SPECIAL LAND ACQUISITION 1988 AIR 897, 1988 SCR (3) 198 HAS HELD THAT THERE IS, IT IS TRUE, NO GENERAL PRINCIPLE SAVING T HE PARTY FROM ALL MISTAKES OF ITS COUNSEL. IF THERE IS NEGLIGENCE, DELIBERATE OR GROSS INACTION OR LACK OF BONA FIDES ON THE PART OF THE PARTY OR ITS COUNSEL THERE IS NO RE ASON WHY THE OPPOSITE SIDE SHOULD BE EXPOSED TO A TIME-BARRED APPEAL. EACH CASE WILL HAVE TO BE CONSIDERED ON THE PARTICULARITIES OF ITS OWN SPECIAL FACTS. IN ANOTHE R AUTHORITY OF HONBLE ORISSA HIGH COURT STYLED AS MOHAN PRASAD SINGH DEOVS GANESH PRASAD BHAGATANDORS AIR 1952 ORI 168 , HIS LORDSHIP NARASIMHAM J; HAS OBSERVED AS UNDER IT IS WELL KNOWN THAT ON MANY DIFFICULT QUESTIONS OF LAW THERE IS A CONFLICT OF DECISIONS AND IT IS DIFFICULT FOR ANY C OUNSEL TO ANTICIPATE WHAT VIEW A JUDGE WOULD TAKE. NO AMOUNT OF CARE OR DILIG ENCE ON HIS PART WOULD THEREFORE SUFFICE AND IN SUCH CIRCUMSTANCES T HERE MAY BE A GOOD CASE FOR CONDONING THE DELAY. SIMILARLY MISTAKE OF FACT IF IT IS COMMITTED WHILE ACTING IN GOOD FAITH MAY BE A SUFFICIENT CAUS E. BUT A MISTAKE OF FACT ARISING OUT OF NEGLIGENCE CANNOT BE SAID TO BE COMMITTED IN GOOD FAITH. 20. IN 'AMBIKA RANJAN V. MANIKGANJ LOAN OFFICE', 55 CAL 798 AND 'SURENDRAMO-HAN V. MAHENDRANATH', 59 CAL 78 1 THE QUESTION AS TO HOW FAR A PARTY WOULD SUFFER FOR THE NEGLIGENCE OF HIS LEGAL ADVISER WAS CONSIDERED AND RELIANCE WAS P LACED ON THE FOLLOWING OBSERVATIONS OF BRETT M. R. IN 'HIGHTON V. TREHERNE', (1879) 48 L J EX 167. 'IN CASES WHERE A SUITOR HAS SUFFERED FROM THE NEGL IGENCE OR IGNORANCE OR GROSS WANT OF LEGAL SKILL OF HIS LEGAL ADVISER H E HAS HIS REMEDY AGAINST THAT LEGAL ADVISER, AND MEANTIME THE SUITOR MUST SUFFER. BUT WHERE THERE HAS BEEN A BONA FIDE MISTAKE, NOT THROU GH MISCONDUCT NOR THROUGH NEGLIGENCE NOR THROUGH WANT OF REASONABLE S KILL BUT SUCH AS A SKILLED PERSON MIGHT MAKE, I VERY MUCH DISLIKE THE I DEA THAT THE RIGHTS OF THE CLIENT SHOULD BE THEREBY FORFEITED.' IN THE P RESENT CASE I CANNOT HOLD THAT THE LEGAL ADVISER OF THE PETITIONER WAS N OT GUILTY OF NEGLIGENCE BEARING IN MIND THE DEFINITION OF 'GOOD FAITH' GIVE N IN THE LIMITATION ACT. 6. SO IN VIEW OF THE LAW LAID DOWN BY THE VARIOUS H IGH COURTS AS WELL BY THE HONBLE SUPREME COURT, THERE IS NO MERIT IN THE CAS E OF THE ASSESSEE FOR ITA NO. 6488/MUM/2012 AY : 2007-08 9 CONDONATION OF DELAY. THE ASSESSEE HAS RELIED UPON THE FOLLOWING AUTHORITIES IN SUPPORT OF ITS CONTENTIONS: COLLECTOR, LAND ACQUISITION VS. KATIJI 167 ITR 471 (SC) IMPROVEMENT TRUST VS. UJAGAR SINGH (2010) 6 SSC 786 (SC) HOWEVER, IT MAY BE OBSERVED THAT IN THE AUTHORITIES RELIED UPON BY THE ASSESSEE, IT HAS BEEN HELD THAT THE DELAY MAY BE CONDONED BY THE COURTS WHEN THE SAME IS NON DELIBERATE AND WHEN THERE IS NO GROSS NEGLIGENCE, I NACTION OR WANT OF DUE DILIGENCE OR BONA FIDE ON THE PART OF THE ASSESSEE OR HIS REP RESENTATIVE, BUT THE CASE IN HAND, AS WE HAVE OBSERVED ABOVE, IS OF GROSS NEGLIGENCE, INACTION, WANT OF DUE DILIGENCE AND EVEN NO BONA FIDES ARE ATTRIBUTABLE ON THE COND UCT OF THE ASSESSEE AND AS SUCH THE FACTS OF THE PRESENT CASE ARE QUITE DISTINGUISH ABLE AND THE LAW CITED BY THE ASSESSEE IS NOT APPLICABLE IN THE PRESENT CASE. RAT HER THE LAW OTHERWISE IS AGAINST THE ASSESSEE AS WE HAVE DISCUSSED ABOVE. THE ASSESS EE HAS TO SUFFER FOR NOT FILING APPEAL WITHIN THE PERIOD OF LIMITATION WHEN IT WAS NOT PREVENTED FROM ANY SUFFICIENT CAUSE, AS THE SUBSTANTIVE RIGHT ACCRUED IN FAVOUR O F THE OTHER PARTY CANNOT BE TAKEN AWAY WITHOUT ANY REASONABLE GROUND. IN OUR VIEW, T HE LEARNED CIT(A) HAS RIGHTLY DISMISSED THE APPLICATION FOR CONDONATION OF DELAY AND THEREBY APPEAL OF THE ASSESSEE BEING BARRED BY LIMITATION. THE FINDING OF THE LEARNED CIT(A) IN RESPECT OF THE MATTER IS HEREBY UPHELD. SINCE WE HAVE UPHELD THE ORDER OF THE CIT(A) ON LIM ITATION POINT, IT IS NOT NECESSARY TO ADJUDICATE ON OTHER ISSUE ON MERIT AS THE SAME IS RENDERED ACADEMIC. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HERE BY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MAY 2013. SD/- SD/- (SANJAY ARORA) (SANJAY G ARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT :17 TH MAY, 2013 SA ITA NO. 6488/MUM/2012 AY : 2007-08 10 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. CONCERNED MUMBAI 4. THE CIT (A) CONCERNED MUMBAI 5. THE DR, A - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI