PRASHANTH PROJECTS LTD, NAVI MUMBAI V. DCIT 10(3), MUMBAI

ITA 7167/MUM/2011

• Counselvise Citation: 716719914 RSA 2011
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 21-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRA BHAT JHA
• Assessee Lawyers: R MURALIDHAR
• Keywords: Recovery proceedings; Bonafide belief; Period of limitation; Application of stay; Reasonable cause; Time period of passing order; Condonation of delay
• Section: 80G

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUM BAI - C BENCH. . . , , BEFORE S/SH. B.R. MITTAL, JUDICIAL MEMBER & RAJENDRA, ACCOUNTANT MEMBER ./ ITA NO. 7167/MUM/2011, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-2005-06 PRASHANT PROJECTS LIMITED, 406-408 HERMES ATRIUM, PLOT NO.57,SECTOR11,CBD BELAPUR, NAVI MUMBAI-400614 DCIT 10(3) AAYKAR BHAVAN MUMBAI-20 PAN:AABCP2387F ( #$ / APPELLANT) ( %&#$ / RESPONDENT) #$ #$ #$ #$ ' ' ' ' / APPELLANT BY :SH.R.MURALIDHAR %&#$ ( ' / RESPONDENT BY :SH.PRABHAT JHA ! ! ! ! ( (( ( )* )* )* )* / DATE OF HEARING : 19-08-2013 +,' ( )* / DATE OF PRONOUNCEMENT : 04-09-2013 ! ! ! ! , 1961 ( (( ( 254(1) )-) )-) )-) )-) . . . . ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,A.M. CHALLENGING THE ORDER DT.04-08-2011 OF THE CIT(A)-2 2,MUMBAI,ASSESSEE HAS FILED FOLLOWING GROUNDS OF APPEAL: 1.(A) THE LEARNED CIT(A) ERRED IN NOT ADMITTING TH E APPEAL ON THE GROUNDS OF DELAY WHEN THE APPELLANT HAD IN FACT FILED THE APPEAL WITH THE DY.CIT 10(3) WITHIN THE S TATUTORY TIME LIMIT OF 30 DAYS PERIOD AND DULY ACKN OWLEDGED. (B)THE SECOND SET OF APPEAL WAS FILED IN VIEW OF TH E DY. CIT 10(3) NOT FORWARDING THE SAID APPEAL TO T HE CIT (A) IN CHARGE. 2.THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING ON O THER GROUNDS OF APPEAL HERE UNDER. A.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING AND MAKING ADDITION OF RS. 55,69,138/-OUT OF DIRECT EXPENSES ( RS.39,45,687/-) AND OUT OF ADMINISTRATIVE EXPENSES (RS.16,23,451/-) WHICH BE SET ASIDE. I.THE LEARNED ASSESSING OFFICER HAS MADE THE ADDITI ON ARBITRARILY, BASED ON CONJECTURES AND SURMISES B Y ESTIMATING WITHOUT BRINGING ANY DETAILS OR FACTS ON RECORD. II.THE LEARNED ASSESSING OFFICER ERRED IN NOT CONSI DERING THE VOLUMINOUS DETAILS INCLUDING BILLS, VOUC HERS, PAYMENTS MADE ETC.,IN SUPPORT OF ALL THE EXPENSES INCURRED A ND HAS ERRED IN OBSERVING THAT NO PROPER SUPPORTING DETAILS PRODUCED. III.THE APPELLANT PRAYS THAT THE ADDITION OF RS. 55 ,69,138/- BE SET ASIDE. IV.WITHOUT PREJUDICE, THE ADDITION MADE ON ESTIMATE BASIS BEING ON HIGHER SIDE IS TO BE REDUCED. B.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED ASSESSING OFFICER ERRED IN NOT GIVING DEDUCTION U/S 80G ON THE DONATION OF RS. 10,40,000/- GIVEN TO RAN GACHARY TRUST WHICH IS ELIGIBLE AND EXEMPT. THE APP ELLANT PRAYS 2 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. THAT THE LEARNED ASSESSING OFFICER BE DIRECTED TO G IVE SUCH DEDUCTION. 3.THE APPELLANT CRAVES LEAVE TO ADD AMEND OR ALTER ANY OR ALL OF THE GROUNDS OF APPEAL. FACTS OF THE CASE : 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF CONSTRU CTION OF STORAGE HANDLING TERMINAL OF PETROLEUM PRODUCTS,FILED ITS RETURN OF INCOME ON31. 10.2005 DECLARING TOTAL INCOME OF RS.45.49 LACS.ASSESSING OFFICER (AO)FINALISED THE ASSESSMEN T ORDER U/S.143(3) OF THE ACT, ON 31.12.2007, DETERMINING THE TOTAL INCOME AT RS.1,11,17.010/-. ASSESSMENT ORDER WAS RECEIVED BY THE ASSESSEE ON 25.01.2008 AND ACCORDINGLY APPEAL WAS TO BE FIL ED BY 24.02.2008 ,BUT,APPEAL WAS FILED ON 09. 06.2011.THUS,THERE WAS DELAY OF MORE THAN 3 YEARS. AS PER THE ASSESSEE,BY MISTAKE IT FILED APPEAL IN THE OFFICE OF THE ACIT.LATER ON IN MAY,2011,WHEN IT CAME TO KNOW THAT APPEAL WAS TO BE FILED BEFORE THE FAA,AN APPLICATION WAS MOVED BY IT TO TH E AO FOR TRANSFERRING THE APPEAL TO THE OFFICE OF THE FAA.AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,FAA DISMISSED THE APPEAL FILED BY IT. 2.1. EFFECTIVE GROUND OF APPEAL IS ABOUT NOT ADMITTING T HE APPEAL BY THE FAA ON THE GROUND OF DELAY.ASSESSEE MOVED AN APPLICATION BEFORE THE HIM FOR CONDONING DELAY STATING THAT BY MISTAKE APPEAL WAS FILED BEFORE THE AO,THAT ONCE THE ASSESS EE BECAME AWARE OF THE MISTAKE IT MOVED AN APPLICATION FOR TRANSFERRING THE APPEAL TO THE OFFI CE OF THE FAA.AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE HE HELD THAT THE APPLICATION TO AO HAD BEEN FILED AFTER MORE THAN 3 YEARS FROM THE DATE OF FILING OF APPEAL AT WRONG PLACE,THAT ASSESS EE HAD NOT EXPLAINED AS TO WHY IT WAS NOT AWARE OF THE SO CALLED MISTAKE COMMITTED TILL 3 YEARS AND HOW THE SAME WAS REALISED AFTER MORE THAN 3 YEARS,THAT THE ASSESSEE WAS ASSISTED BY THE CAS WH O WERE AWARE OF THE PROCEDURE OF FILING OF APPEAL SINCE THE ASSESSMENT AS WELL AS APPELLATE PR OCEEDINGS WERE BEING REPRESENTED BY THE DULY AUTHORISED CA,THAT HUGE GAP OF MORE THAN 3 YEARS WH ICH HAD NOT BEEN EXPLAINED BY THE ASSESSEE WHICH PROVED THAT THERE WAS NO DILIGENCE ON THE PAR T OF THE ASSESSEE,THAT THE ASSESSEE WAS TOTALLY NEGLIGENT,THAT THE CAUSE OF DELAY EXPLAINED BY THE APPELLANT IN FILING APPEAL WAS AVOIDABLE BY DUE CARE AND ATTENTION,THAT THERE WAS NO REASONABLE CAUSE WITHIN THE MEANING OF PROVISIONS OF SECTION 249(3) OF THE ACT.HE RELIED UPON THE DECISI ON OF D BENCH OF ITAT CHENNAI PRONOUNCED IN THE CASE OF SRI.VENKATESA PAPER & BOARDS LTD.(98 LTD 200) AND DISMISSED THE APPEAL FILED BY THE ASSESSEE,AS STATED EARLIER. 2.1. BEFORE US,AUTHORISED REPRESENTATIVE SUBMITTED THAT APPEAL WAS FILED BEFORE THE AO BY MISTAKE, THAT MISTAKE CAME TO ITS NOTICE WHEN IT CO NTACTED OFFICE OF THE FAA, THAT ONCE MISTAKE WAS NOTICEDASSESSEE REQUESTED THE AO TO TRANSFER IT TO THE FAA,THAT DEALY IN FILING APPEAL WAS BECAUSE OF BONA FIDE BELIEF THAT APPEAL HAS BEEN F ILED BEFORE THE RIGHT FORUM,THAT FAA SHOULD HAVE CONDONED THE DELAY,THAT A LIBERAL VIEW SHOULD BE TAKEN.HE REFERRED TO PAGES NO.1086,1091 OF THE PAPER BOOK(PB) AS WELL AS THE LETTERS WRITTE N BY HIM TO THE OFFICERS OF THE DEPARTMENT ON VARIOUS OCCASIONS.HE ALSO RELIED UPON THE CASES OF RAM NATH SAO(3 SCC 195),MST. KATIJI(167 ITR471),N. BALKRISHNAN (7SCC123), SANKAR RAO(AIR 19 87 SC1726),BHARAT AUTO CENTER (282 ITR366-ALL.),CHEMINOR DRUGS LTD(105 ITD 613 -HYD)GE NERAL WILLIAMS MASONIC (ITAT DEL). DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT FAA HAS HELD THAT NO SUFFICIENT CAUSE OF DELAY WAS SHOWN BY THE ASSESSEE ,THAT THERE WAS NEGLIGEN CE ON PART OF THE ASSESSEE, THAT ASSESSEE ITSELF HAD ADMITTED THAT IT HAD FIELD APPEAL BEFORE THE FA A,THAT DELAY WAS NOT EXPLAINED BY THE ASSESSEE. 3 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. 2.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.BEFORE PROCEEDING FURTHER,WE WOULD LIKE TO DISCUSS PHILOSOPHY AND HIS TORY OF LAW OF CONDONATION OF DELAY ALONG WITH A FEW CASES FOR BETTER UNDERSTANDING OF THE SU BJECT.SEEDS OF CONDONATION OF DELAY CAN BE SEEN IN ACT NO.XXXII OF 1860.PART XII,SECTION CIX,O F THE ACT MENTIONS THAT APPELLATE AUTHORITY, HEARING THE APPEAL AGAINST THE ORDER OF PUNCHAYAT,M AY ALLOW A PERSON TO FILE APPEAL EVEN AFTER FIFTEEN DAYS(PERIOD STIPULATED FOR FILING APPEALS A S PER THE PROVISIONS OF THE SAID ACT)FOR SPECIAL REASONS.ACT NO.XVI 1870, ACT NO.XII 1870 ALSO HAD S IMILAR PROVISIONS.BUT,SECTION 25(2) OF THE ACT II OF 1886 CLEARLY MENTIONED THAT THERE SHOULD BE SUFFICIENT CAUSE FOR NOT PRESENTING PETITION WITH IN TIME.DISCRETION WAS GIVEN TO THE PRESIDING OFFICER TO ACCEPT THE BELATED PETITION.INDIAN INCOME-TAX,1922 IS MORE OR LESS SAME AS THE PRESENT ACT.SECTION 30(2)OF THE SAID ACT IS ALMOST IDENTICAL TO SECTION 249(3)OF THE ACT.BOTH THE ACTS ALLOW THE ASSESSEE TO FILE APPEALS AFTER EXPIRY OF SPECIFIED DATES,IF THEY CAN SHOW SUFFICIENT CAUS E FOR NOT FILING APPEALS IN TIME. IT IS SAID THAT THE LAW OF LIMITATION IS ENSHRINED IN THE MAXIM THAT IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION .RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE R IGHTS OF THE PARTIES, RATHER THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME.BUT,SAID RULES ARE MEANT TO SEE THAT THE PARTI ES SEEK THEIR REMEDY PROMPTLY.CONDONATION OF DELAY IS THE DISCRETION OF THE PRESIDING OFFICERS O F JUDICIAL FORUMS AND IS GOVERNED BY SECTION 5 OF THE LIMITATION ACT, 1963.COURTS ARE OF THE VIEW THAT THE WORDS SUFFICIENT CAUSE OF THE SAID ACT,SHOULD RECEIVE A LIBERAL CONSTRUCTION,SO AS TO ADVANCE SUBSTANTIAL JUSTICE.ONCE A JUDICIAL FORUM ACCEPTS THE EXPLANATION AS SUFFICIENT,IT IS T HE RESULT OF POSITIVE EXERCISE OF DISCRETION.THESE PROVISIONS DO NOT ENVISAGE THAT SUCH A DISCRETION C AN BE EXERCISED ONLY IF THE DELAY IS WITHIN A CERTAIN LIMIT.THE LENGTH OF THE DELAY IS NOT THE MA TTER, ACCEPTABILITY OF THE EXPLANATION IS THE ONLY CRITERION.FOLLOWING THE SPIRIT OF ADVANCING SUBSTAN TIAL JUSTICE,ACT HAS INCLUDED DISCRETIONARY POWERS FOR CONDONING DELAY IN FILING APPEALS.SECTIO N 249(3)OF THE ACT,THAT ALLOWS THE FAA TO ADMIT BELATED APPEALS,READS AS UNDER : (3) THE COMMISSIONER (APPEALS) MAY ADMIT AN APPEAL AFTER THE EXPIRATION OF THE SAID PERIOD IF HE IS SATISFIED THAT THE APPELLANT HAD SUFFICIENT C AUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. 2.3.A. NOW,WE WOULD LIKE TO DISCUSS A FEW CASES RELEVANT F OR DECIDING THE ISSUE AT HAND.IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL V.L IVING MEDIA INDIA LTD.(348ITR7)APPEALS WERE FILED BY THE POSTAL DEPARTMENT BEFORE THE HON BLE SUPREME COURT BY WAY OF SPECIAL LEAVE ALONG WITH AN APPLICATIONS FOR CONDONING DELAY OF 427 DAYS.DISMISSING THE APPEAL HONBLE APEX COURT HELD AS UNDER : ..NEITHER THE DEPARTMENT NOR THE PERSON IN-CHARGE HAD FILED AN EXPLANATION FOR NOT APPLYING FOR THE CERTIFIED COPY WITHIN THE PRESCRIBED PERIOD. TH E OTHER DATES MENTIONED IN THE AFFIDAVIT CLEARLY SHOWED THAT THERE WAS DELAY AT EVERY STAGE AND THER E WAS NO EXPLANATION AS TO WHY SUCH DELAY HAD OCCASIONED. THE DEPARTMENT OR THE PERSON CONCERNED HAD NOT EVIN CED DILIGENCE IN PROSECUTING THE MATTER TO THE COURT BY TAKING APPRO PRIATE STEPS. (EMPHASIS BY US).THE PERSONS CONCERNED WERE WELL AWARE OR CONVERSANT WITH THE IS SUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WA Y OF FILING A SPECIAL LEAVE PETITION IN THE SUPREME COURT. IN THE ABSENCE OF PLAUSIBLE AND ACCE PTABLE EXPLANATION, THE DELAY COULD NOT BE CONDONED MECHANICALLY .. THOUGH IN A MATTER OF CONDONATION OF DELAY WHEN THE RE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA FIDE, A LIBERAL CONCESSION HAD TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE (EMPHASIS BY US)..CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR TH E DELAY EXCEPT MENTIONING OF VARIOUS DATES, 4 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. THE DEPARTMENT HAD FAILED TO GIVE ACCEPTABLE AND COGENT REASONS SU FFICIENT TO CONDONE SUCH A HUGE DELAY. (EMPHASIS BY US). 2.3.B. IN A RECENT JUDGMENT,(5 TH AUG.,2013)HONBLE SUPREME COURT HAS AGAIN CONSIDERE D THE ISSUE OF CONDONATION OF DELAY.IN THAT MATTER THE PETITION ER HAD FILED A WRIT PETITION BEFORE THE DELHI HIGH COURT AGAINST AN ORDER PASSED BY THE COMMISSIO NER OF CUSTOMS, KANPUR.THE DELHI HIGH COURT CONVERTED THE WRIT PETITION INTO STATUTORY AP PEAL UNDER THE CUSTOMS ACT, 1962. DEPARTMENT RAISED AN OBJECTION ABOUT THE TERRITORIAL JURISDICT ION OF THAT COURT.PETITIONER WITHDREW THE APPEAL WITH LIBERTY TO APPROACH THE JURISDICTIONAL HIGH CO URT.HONBLE DELHI HIGH COURT DISMISSED THE APPEAL AS WITHDRAWN WITH THE FOLLOWING OBSERVATIONS : ' IT IS FOR JURISDICTIONAL HIGH COURT TO DECIDE THE P RAYER FOR WAIVER/EXCLUSION. HOWEVER, IT DOES APPEAR THAT THE APPELLANT IN THE PRESENT CASE HAD B ONAFIDELY FILED THE APPEAL IN THIS COURT AND HAS BEEN PRESSING THE SAME, AS THE TRIBUNAL IS LOCATED IN DELHI.' APPELLANT THEN FILED APPEAL BEFORE THE HONBLE ALLA HABAD HIGH COURT AND APPLIED FOR CONDONATION OF DELAY OF 697 DAYS.DISMISSING THE APP EAL COURT OBSERVED AS UNDER: 'THE APPELLANT WAS ASSISTED AND HAD THE SERVICES OF THE COUNSEL'S, WHO ARE EXPERT IN THE CENTRAL EXCISE AND CUSTOMS CASES.THEY FIRST FILED A WRIT PE TITION, AND THEN WITHOUT CONVERTING IT INTO APPEAL OBTAINED AN INTERIM ORDER.THEY KEPT ON GETTI NG THE MATTER ADJOURNED AND THEREAFTER IN SPITE OF SPECIFIC OBJECTION TAKEN,CITING THE RELEVA NT CASE LAW, WHICH IS WELL KNOWN, TOOK TIME TO STUDY THE MATTER.THEREAFTER, THEY TOOK MORE THAN ON E YEAR AND THREE MONTHS, TO STUDY THE MATTER TO WITHDRAW THE APPEAL.THEY TOOK A CHANCE, WHICH AP PARENTLY LOOKING TO THE FACTS IN KETAN V. PAREKH'S CASE AND THIS CASE APPEAR TO BE THE PRACTI CE OF THE COUNSELS APPEARING IN SUCH MATTERS AT DELHI HIGH COURT AND SUCCEEDED IN GETTING INTERIM O RDERS.THE SUPREME COURT HAS STRONGLY DEPRECATED SUCH PRACTICE OF FORUM SHOPPING. IN THIS CASE ALSO THERE IS NO PLEADING THAT THE WRIT PETITION AND THEREAFTER APPEAL WAS FILED IN DELHI H IGH COURT, UNDER BONAFIDE BELIEF THAT IT HAD JURISDICTION TO HEAR THE APPEAL AND THAT THE APPELL ANT WAS PURSUING THE REMEDIES IN WRONG COURT WITH DUE DILIGENCE.THE APPELLANT, THEREAFTER, CAUSE D A FURTHER DELAY OF 20 DAYS IN FILING THIS APPEAL, WHICH HE HAS NOT EXPLAINED.FOR THE AFORESAI D REASONS, WE ARE OF THE OPINION THAT THE APPELLANT IS NOT ENTITLED TO THE BENEFIT OF SECTION 14 OF THE LIMITATION ACT. THIS APPEAL IS BARRED BY LIMITATION BY 697 DAYS, WHICH HAS NOT BEEN SUFFICIE NTLY EXPLAINED BY THE APPELLANT.' APPELLANT CHALLENGED THE ORDER OF THE HONBLE HIGH COURT BEFORE THE HONBLE SUPREME COURT. NOT ONLY SPECIAL LEAVE PETITION,FILED BY THE APPELL ANT, WAS DISMISSED BY THE HONBLE APEX COURT, BUT COST OF RS. 25,000/- WAS ALSO IMPOSED ON THE AP PELLANT. ( 2013-TIOL-36-SC-CUS ) 2.3.C. IN THE CASE OF BALWANT SINGH (DEAD.) V.JAGDISH SING H(8 SCC 685), ISSUE BEFORE THE HONBLE APEX COURT WAS CONDONATION OF DELAY OF 778 DAYS IN BRINGING THE LEGAL HEIRS OF THE APPELLANT ON RECORD.IN THAT THE APPLICANTS CONTENDED THAT THEY W ERE NOT AWARE OF THE PENDENCY OF THE APPEAL EARLIER AND THAT THEY HAD COME TO KNOW OF IT ONLY I N THE MONTH OF MARCH, 2010, WHERE AFTER,THE APPLICATION WAS FILED ON APRIL 15, 2010. HONBLE CO URT NOTICED CONTRADICTIONS IN THE STAND TAKEN TO EXPLAIN THE DELAY AND CONCLUDED THAT THE APPLICA NTS HAD ACTED IRRESPONSIBLY AND WITH NEGLIGENCE AND, THUS, THERE WAS AN EX FACIE LACK OF BONA FIDE. IT WAS HELD THAT THE CONDUCT OF THE LEGAL REPRESENTATIVES OF THE SOLE DECEASED EVINCED THAT THEY HAD ACTED WITH CALLOUSNESS.IT WAS IN THAT FACTUAL CONTEXT, THAT THE HONBLE APEX COURT O N AN EXHAUSTIVE SURVEY OF ITS EARLIER DECISIONS ON THE ISSUE DECLINED TO CONDONE THE DELAY.WHILE EM PHASISING THAT THE EXPRESSION SUFFICIENT 5 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. CAUSE,IMPLIES THE PRESENCE OF LEGAL AND ADEQUATE R EASONS TO ADVANCE SUBSTANTIAL JUSTICE, WHICH PRESUPPOSES NO NEGLIGENCE OR INACTION ON THE PART O F THE APPLICANT (EMPHASIS BY US).IT WAS ALSO ENUNCIATED THAT THE WORD SUFFICIENT SIGNIFIED ADEQU ACY TO ANSWER THE PURPOSE INTENDED.HONBLE COURT FURTHER OBSERVED THAT THE SUFFICIENT CAUSE SH OULD BE SUCH AS IT WOULD PERSUADE THE COURT, IN THE EXERCISE OF ITS JUDICIAL DISCRETION,TO TREAT TH E DELAY AS AN EXCUSABLE ONE.IN CONCLUSION,HOBLE COURT REITERATED THAT THE WORD SUFFICIENT CAUSE S HOULD BE UNDERSTOOD AND APPLIED IN A REASONABLE,PRAGMATIC, PRACTICAL AND LIBERAL MANNER AND THAT THE EXTENT AND DEGREE OF LENIENCY TO BE SHOWN BY A COURT WOULD DEPEND ON THE NATURE OF T HE APPLICATION AND FACTS AND CIRCUMSTANCES OF THE CASE (EMPHASIS BY US). 2.3.D. IN INDIAN OIL CORPORATION LTD. V. SUBRATA BORAH CHO WLEK 3 GLR 312,THERE WAS DELAY OF 59 DAYS. EXPLANATIONS FURNISHED BY THE APPLICANT REVEA LED, THAT NOT ONLY THE APPLICANT WHILED AWAY TIME AT VARIOUS INTERVENING STAGES EVEN AFTER THE E XPIRY OF THE PERIOD OF LIMITATION, IT WAITED FOR THE SUMMER VACATION OF THE HON'BLE SUPREME COURT OF INDIA AND THE DELHI HIGH COURT TO BE OVER TO HAVE THE MATTER ATTENDED TO BY THEIR COUNSEL. 2.3.E. IN THE CASE OF AJIT SINGH THAKUR SINGH & ANR. VS. S TATE OF GUJARAT THE HONBLE SUPREME COURT HAS EXPLAINED AS WHAT CONSTITUTES SUFFICIENT CAUSE.IT WAS HELD THAT WHEN A PARTY ALLOWS LIMITATION TO EXPIRE AND PLEADS SUFFICIENT CAUSE FO R NOT FILING THE APPEAL EARLIER,THE SUFFICIENT CAUSE MUST ESTABLISH THAT BECAUSE OF SOME EVENT OR CIRCUMSTANCES ARISING BEFORE LIMITATION EXPIRED IT WAS NOT POSSIBLE TO FILE THE APPEAL WITH IN TIME.(1 SCC 495) 2.4. AFTER CONSIDERING THE ABOVE REFERRED JUDGMENTS,WE A RE OF THE OPINION THAT DELAY CAN BE CONDONED ONLY IF THERE IS NO GROSS NEGLIGENCE OR DE LIBERATE INACTION OR LACK OF BONA FIDE. SECONDLY,ASSESSEE SHOULD FURNISH ACCEPTABLE AND COG ENT REASONS SUFFICIENT TO CONDONE DELAY. THESE ARE THE PRE-REQUISITES FOR CONDONING DELAY.BE SIDES THE ABOVE REFERRED BASIC PRINCIPLE OF CONDONATION DELAY CERTAIN OTHER GENERAL PRINCIPLES ON THE SUBJECT, CULLED OUT FROM VARIOUS CASE LAWS,CAN BE SUMMARISED AS UNDER: I). IF SUFFICIENT CAUSE FOR EXCUSING DELAY IS SHOWN,DIS CRETION IS AVAILABLE TO THE FAAS TO CONDONE THE DELAY AND ADMIT THE APPEAL. II). THE EXPRESSION 'SUFFICIENT CAUSE' IS NOT DEFINED,BU T IT MEANS A CAUSE WHICH IS BEYOND THE CONTROL OF ANASSESSEE.FOR INVOKING THE AID OF THE S ECTION ANY CAUSE WHICH PREVENTS A PERSON APPROACHING THE FAA WITHIN TIME IS CONSIDERED SUFFI CIENT CAUSE.IN DOING SO,IT IS THE TEST OF REASONABLE MAN IN NORMAL CIRCUMSTANCES WHICH HAS TO BE APPLIED.THE TEST WHETHER OR NOT A CAUSE IS SUFFICIENT IS TO SEE WHETHER IT COULD HAVE BEEN AVOIDED BY THE PARTY BY THE EXERCISE OF DUE CARE AND ATTENTION. IN OTHER WORDS,WHETHER IT IS BONA FI DE CAUSE,INASMUCH AS NOTHING SHALL BE DEEMED TO BE DONE BONA FIDE OR IN GOOD FAITH WHICH IS NOT DONE WITH DUE CARE AND ATTENTION.WHAT MAY BE SUFFICIENT CAUSE IN ONE CASE MAY BE OTHERWISE IN AN OTHER.WHAT IS OF ESSENCE IS WHETHER IT WAS AN ACT OF PRUDENT OR REASONABLE MAN.[ASHUTOSH BHADRA V . JATINDRA MOHAN SEAL (AIR 1954 CAL.238) AND HISARIA PLASTIC PRODUCTS V. CST AIR 1980 (ALL.) 185].SUBSEQUENT DECISION OF A COURT CANNOT CONSTITUTE SUFFICIENT CAUSE. III). IN EVERY CASE OF DELAY,THERE IS SOME LAPSE ON THE P ART OF THE ASSESSEE. IF THERE ARE NO MALA FIDES AND IT IS NOT PUT FORTH AS PART OF A DILATORY STRATEGY,THE FAA SHOULD CONSIDER THE APPLICATION 6 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. OF THE ASSESSEE.BUT WHEN THERE IS REASONABLE GROUN D TO THINK THAT THE DELAY WAS OCCASIONED OTHERWISE THAN A BONA FIDE CONDUCT, THEN THE FAA SH OULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. IV) SECTION 249(3)OF THE ACT IS DISCRETIONARY IN NATURE AND THE ASSESSEE CANNOT SEEK CONDONATION OF DELAY UNDER THIS PROVISION AS A MATTER OF RIGHT, BUT HAS TO SATISFY THE FAA BY EXPLAINING THE SUFFICIENT CAUSE FOR THE DELAY. V). JUST BECAUSE THERE IS MERIT IN THE APPEAL FILED BY THE ASSESSEE, ANY AMOUNT OF DELAY, HOWEVER, NEGLIGENTLY CAUSED,CANNOT BE CONDONED. VI). REQUIREMENT OF SUFFICIENT CAUSE FOR DELAY CANNOT BE IGNORED AND IT BECOMES VERY IMPORTANT AND SIGNIFICANT WHEN THE DELAY IS INORDINATE AND AB NORMAL. VII). IN THE MATTER OF J.B. ADVANI & CO. (P.) LTD.(72 ITR 395)HONBLE SUPREME COURT HAD HELD THAT EXPLANATION OF DELAY FOR THE ENTIRE PERIOD IS NECESSARY.IN OTHER WORDS WHAT IS EXPECTED OF THE APPELLANT IN SUCH MATTERS IS TO SHOW THAT DELAY WAS OCCASIONED DUE TO SOME SUFFICIENT CAUSE.THE CAUSE PLEADED SHOULD NOT ONLY BE A PROBABLE ONE BUT IT SHOULD BE REAL AND SUFFICIENTLY REASONABLE. IT WOULD NOT BE ANY SORT OF ASSERTION THAT WOULD AM OUNT TO SUFFICIENT CAUSE AND WOULD JUSTIFY THE CONDONATION OF DELAY. THE CAUSE PLEADED MUST FIT IN THE FACTS AND CIRCUMSTANCES OF THE GIVEN CASE AND THE EXPLANATION OFFERED REGARDING THE DELAY OCC ASIONED BY SUCH CAUSE SHOULD APPEAL TO REASONS SO AS TO GET JUDICIAL APPROVAL. IN SHORT IN MATTERS OF DELAY IT IS NEITHER PRACTICABLE NOR DESIRABLE TO EXPLAIN MINUTE-TO-MINUTE/HOUR-TO-HOUR DELAY,BUT DELAY HAS TO BE EXPLAINED. VIII). WHEN AN APPLICATION FOR CONDONATION OF DELAY IS MAD E;TO CONSIDER WHETHER A SUFFICIENT CAUSE HAS BEEN MADE OUT BY THE ASSESSEE;THE ORDER OF THE FAA SHOULD DISCLOSE THAT HE HAD APPLIED HIS MIND TO THE QUESTION RAISED BEFORE IT.DUE EXERCISE OF JUDICIAL DISCRETION IS A PRE-CONDITION FOR ALLOWING/ REFUSING AN APPLICATION FILED FOR CONDONI NG DELAY. IX). THE APPLICATION FOR CONDONATION OF DELAY SHOULD CON TAIN SUBSTANTIALLY ALL THE RELEVANT MATERIAL AND AS FAR AS POSSIBLE IT SHOULD BE SUPPORTED BY AF FIDAVIT,SHOWING THAT THERE IS SUFFICIENT CAUSE FOR CONDONATION. X). IF THE DELAY IS NOT VITIATED BY ANY ERROR OF LAW IT SHOULD BE CONDONED. XI). ANY EVENT, CAUSE OR CIRCUMSTANCE ARISING AFTER THE EXPIRY OF THE LIMITATION PERIOD CANNOT CONSTITUTE A SUFFICIENT CAUSE. XII). IT IS SAID THAT NON-FILING OF APPEAL BEFORE THE FAA ,BEFORE THE END OF LIMITATION PERIOD,CREATES A VESTED RIGHT IN FAVOUR OF THE REVENUE.AS A RESULT OF NOT FILING OF AN APPEAL BY AN ASSESSEE, DEPARTMENT, GETS A LEGITIMATE AND UNDISPUTED RIGHT OVER THE TAX-REVENUE ACCRUING TO IT IN PURSUANCE OF THE ORDER OF THE AO.THIS RIGHT CANNOT BE DISTURBED IN A LIGHT-HEARTED MANNER. XIII). IN THE CASES OF BELATED APPEALS MATTERS HAVE TO BE ESSENTIALLY ANALYSED IN THE FACTS OF EACH CASE-NO GENERAL FORMULA CAN BE OR SHOULD BE APPLIED ,SO AS TO ENSURE THAT AN OTHERWISE GENUINE CAUSE OF JUSTICE IS NOT DEFEATED BY ADHERENCE TO TE CHNICAL PRECEDENCE. 7 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. XIV). CONDONATION OF DELAY,THOUGH AN EQUITABLE RELIEF,HOW EVER, CANNOT BE ACCORDED MERELY ON SYMPATHY OR COMPASSION AND THE GROUNDS OFFERED HAVE TO BE EVALUATED TO TEST WHETHER THE PARTY IN DEFAULT HAD BEEN GUILTY OF CONSCIOUS AND DELIBER ATE INACTION, CULPABLE NEGLIGENCE AND INEXCUSABLE INDIFFERENCE TO THE PERIOD OF LIMITATIO N MANDATORILY PRESCRIBED BY LAW. 3. IF ABOVE GENERAL PRINCIPALS ARE ANALYSED,IT BECOMES CLEAR THAT TOUCHSTONE FOR CONDONATION OF DELAY IS SUFFICIENCY/REASONABLENESS OF THE CAUSE. FILING OF AN APPEAL IN TIME IS A NORMAL JUDICIAL PROCESS,WHEREAS FILING A BELATED APPEAL IS AN ABNOR MAL STEP.IT IS SAID THAT EXTRAORDINARY REMEDIES NEED EXISTENCE OF EXTRAORDINARY CIRCUMSTANCES. THER EFORE,ASSESSEE HAS TO PROVE THAT ABNORMAL CIRCUMSTANCES REALLY AND FACTUALLY EXISTED IN A PAR TICULAR CASE.NOW,WE WOULD LIKE TO DELIBERATE UPON THE ISSUE AS WHETHER EXTRA ORDINARY CIRCUMSTA NCES EXISTED IN THE CASE UNDER CONSIDERATION. 3.1. NOW WE WOULD LIKE TO DISCUSS THE CASES RELIED UPON BY THE AUTHORISED REPRESENTATIVE (AR). FACTS OF THE CASE OF RAMNATH SAO (SUPRA) WERE THAT AFTER THE DEATH OF SOME LITIGANTS,LEGAL HEIRS WERE TO BE BROUGHT ON RECORD AND THERE WAS DELAY IN COMPLETING THE FORMALITIES. IT WAS SUBMITTED THAT THE PERSONS WHO HAD TO BE BROUGHT ON RECORD WE RE RUSTIC AND ILLITERATE VILLAGERS BELONGING TO DIFFERENT FAMILIES, DIFFERENT VILLAGES WITHIN T HE DIFFERENT POLICE STATIONS.IT WAS ALSO SUBMITTED THAT DELAY WAS NOT INTENTIONAL OR THEY WERE NOT NEG LIGENT OR THERE WAS NO ALLEGATION OF INACTION OF ANY INACTION ON THEIR PART.CONSIDERING THE ABOVE FA CTS HONBLE SUPREME COURT HAD CONDONED THE DELAY.IN THE CASE UNDER CONSIDERATION IT CANNOT BE SAID THAT ASSESSEE WAS NOT KNOWING THE PROCEDURE OF FILING OF APPEAL WAS ILLITERATE.IT WAS REPRESENTED BY A PROFESSIONAL DURING THE ASSESSMENT PROCEEDINGS AS WELL AS THE STAY PROCEEDI NGS. IT IS A CORPORATE ENTITY AND IS ASSISTED BY QUALIFIED PROFESSIONALS.IN OUR OPINION FACTS OF BOT H THE CASES ARE TOTALLY DISTINGUISHABLE. IN THE CASE OF MST. KATIJI(SUPRA) DELAY OF 4 DAYS W AS CONDONED BY THE SUPREME COURT BECAUSE IMPORTANT QUESTION AS REGARDS PRINCIPLE OF VALUATIO N WAS INVOLVED. IT WAS FOUND THAT THERE WAS UPWARD REVISION OF THE ORDER OF COMPENSATION BY 800 % AND THIS REVISION RAISED AN IMPORTANT QUESTION ABOUT VALUATION. THEREFORE, HONBLE APEX C OURT DELAYED THE CONDONATION. IT WAS ALSO OBSERVED BY THE HONBLE COURT THAT APPELLANT WAS A GOVERNMENT BODY AND THAT THE EXPERIENCE SHOWED THAT ON ACCOUNT OF IMPERSONAL MACHINERY AND THE INHERITED BUREAUCRATIC HURDLES DELAY WAS LESS DIFFICULT TO UNDERSTAND THOUGH MORE DIFFIC ULT TO APPROVE.THUS,THE FACTS OF THE CASE OF MST.KATIJI ARE NOT RELEVANT IN DECIDING THE ISSUE T HE IN MATTER UNDER CONSIDERATION-HERE NO IMPORTANT LEGAL ISSUE HAS TO BE DECIDED. NEXT CASE RELIED UPON BY THE ASSESSEE IS OF N.BALKR ISHANA (SUPRA).IN THAT CASE DELAY WAS CAUSED BY MISREPRESENTATION/INACTION OF THE ADVOCATE.ASSES SEE HAD APPROACHED THE CONSUMER PROTEC - TION COURT AND WAS AWARDED COMPENSATION BY DISTRICT FORUM FROM THE ADVOCATE.IN THOSE CIRCUMSTANCES HONBLE SUPREME COURT HELD THAT THERE WAS SUFFICIENT CAUSE FOR FILING BELATED APPEAL.IT WAS ALSO HELD THAT THE ASSESSEE WAS NOT A N IRRESPONSIBLE LITIGANT. THE HONBLE APEX COURT ALSO FOUND THAT EXPLANATION FOR DELAY WAS FOU ND SATISFACTORY BY THE TRIAL COURT,WHEREAS HONBLE HIGH COURT HAD REVERSED THE FINDING OF THE TRIAL COURT.CONSIDERING THESE PARTICULAR CIRCUMSTANCES,DELAY WAS CONDONED. WE ARE OF THE OPI NION THAT THERE IS NO SIMILARITY BETWEEN THE CASE UNDER CONSIDERATION AND THAT OF N. BALKRISHNAN (SUPRA). IN THE CASE OF SANKAR RAO(SUPRA),THE APPEAL WAS LOD GED IN THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE INSTEAD OF THE COURT OF DISTRICT JUD GE.THE APPEAL MEMO WAS RETURNED FOR PRESENTATION OF THE COURT OF DISTRICT JUDGE AND ON THE VERY SAME DATE AND APPEAL WAS FILED. 8 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. CLEARLY,THERE IS NO SIMILARITY BETWEEN THE CASE REL IED UPON BY THE ASSESSEE AND THE CASE UNDER CONSIDERATION. NEXT CASE RELIED UPON BY THE ASSESSEE IS OF BHARAT AUTO CENTRE(SUPRA).IN THAT CASE HONBLE ALLAHABAD HIGH COURT HAD FOUND THAT THE DELAY WAS C AUSED BECAUSE OF SEEKING OF LEGAL OPINION AND CONSULTATION WITH SEVERAL COUNSELS INCLUDING TH E RETIRED JUDGES CONSIDERING THE PECULIAR FACTS OF THE CASE HONBLE COURT HAD ARRIVED AT THE CONCLU SION THAT DELAY WAS NOT CAUSED BECAUSE OF NEGLIGENCE AND ALLOWED THE APPEAL FILED BY THE ASSE SSEE. IN THE CASE OF CHEMINOR DRUGS LTD. (SUPRA) APPEAL W AS FILED BEFORE THE TRIBUNAL DUE TO WRONG ADVICE.CONSIDERING THE TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THAT CASE TRIBUNAL HAD CONDONED THE DELAY.IN CASE OF GENERAL WILLIUM MESONIC POLLY CLINIC (SUPRA) IT WAS FOUND THAT SOCIETY WAS REPRESENTED BY NON-PROFESSIONAL IN INCOME TAX MATTE RS AND NOT BY INCOME TAX EXPERTS,THAT INSTEAD OF FILING OF APPEAL BEFORE THE PROPER FORUM ASSESSEE HAD MOVED A FRESH APPLICATION BEFORE THE DIT(EXEMPTIONS), THAT LATER ON SOME PROF ESSIONAL ADVICE THE SOCIETY TO PREFER AN APPEAL BEFORE THE RIGHT FORUM, CONSIDERING THESE FA CTS DELAY WAS CONDONED. FROM THE ABOVE DISCUSSION,IT IS CLEAR THAT NONE OF THE CASE RELIED UPON BY THE AR OF THE ASSESSEE IS APPLICABLE TO THE FACTS OF THE CASE UNDER CONSID ERATION. 3.3.HERE,WE WOULD ALSO LIKE TO MENTION A FEW FACTS WHICH ARE USEFUL IN DECIDING THE APPEAL.WE FIND THAT AO HAD INFORMED THE ASSESSEE,AS EARLY AS 31.12.2007,TO FILE AN APPEAL BEFORE THE CIT(A).WHILE ISSUING NOTICE OF DEMAND U/S. 156 OF T HE ACT,VIDE PARAGRAPH NO.5,HE SPECIFICALLY MENTIONED AS UNDER: IF YOU INTEND TO APPEAL AGAINST THE ASSESSMENT/FI NE/PENALTY YOU MAY PRESENT AN APPEAL UNDER PARA-1 OF CHAPTER XX OF THE INCOME TAX ACT, 1961 TO THE CIT(A)-10 WITHIN 30 DAYS OF THE RECEIPT OF THIS NOTICE. AFTER THAT ASSESSEE APPLIED FOR STAY TO VARIOUS AUT HORITIES OF DEPARTMENT.ON 15.05.2008 IN HIS LETTER TO THE TAX RECOVERY OFFICER(TRO),ASSESSEE HA D MENTIONED THAT IT HAD FILED AN APPEAL WITH THE COMMISSIONER OF INCOME TAX,MUMBAI.HE FURTHER ME NTIONED THAT IT STRONGLY BELIEVED THAT THE APPEAL OF THE COMMISSIONER OF APPEAL COULD BE FAVOU RABLE AND THE TAX DEMAND WOULD BECOME NIL.FINALLY HE REQUESTED THE TRO TO STAY RECOVERY P ROCEEDINGS TILL THE APPEAL WAS HEARD AND DETERMINED. ASSESSEE CLAIMS ITSELF AN ISO 9001-2000 COMPANY.WITH REGARD TO STAY OF DEMAND, ASSESSEES C.A. HAD APPEARED BEFORE THE CIT(A)-10, MUMBAI AS EVIDENT FROM THE ORDER OF THE COMMISSIONER DATED 12.11.2008,IN HIS ORDER,HE HELD THAT A PORTION OF DEMAND WOULD BE KEPT IN ABEYANCE TILL 31.01.2009 OR THE RECEIPT OF THE ORDE R OF THE APPEAL FROM THE CIT(A) WHICH EVER WAS EARLIER.ON 22.03.2010 IN ITS LETTER TO ACIT-10 (3) IN PARA-2,ASSESSEE MENTIONED THAT IT HAD PREFERRED AN APPEAL TO THE CIT(A) AGAINST THE ORDER OF DCIT-10(3) IN RESPECT OF AY 2005-06.IT WAS ALSO MENTIONED THAT MATTER IN APPEAL HAD NOT BE EN TAKEN FOR HEARING EVEN AFTER LAPSE OF 2 YEARS AND THAT IT WAS SURE ABOUT DISALLOWANCE MADE BY THE AO TO BE SET-ASIDE IN APPEAL. IT WAS FURTHER MENTIONED THAT COMPANY WOULD FOLLOW UP THE MATTER WITH THE CIT(APPEALS) FOR TAKING UP THE CASE FOR HEARING AT THE EARLIEST.VIDE ITS LETTE R DATED 12.03.2011 TO THE ACIT-10-3, MUMBAI, ASSESSEE INFORMED THAT FOR EARLIER YEARS MATTER WAS PENDING BEFORE THE ITAT/FAA.WE FIND THAT IN ITS LETTER,DATED 08.04.2011 TO THE TRO (10) (3), ASSESSEE-COMPANY HAD MENTIONED THAT IT HAD BEEN ABLE TO WIN CASE IN THE HONBLE SUPREME COURT, THAT THE DEPARTMENTAL APPEAL AGAINST IT WAS REJECTED FOR THE EARLIER YEARS IN APPEAL BY THE ITA T,MUMBAI. THE LETTER ALSO TALKS ABOUT PENDENCY 9 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. OF APPEAL FOR AY 2005-06 IN THE OFFICE OF THE FAA A ND GUIDELINE ISSUED BY THE CBDT ALSO REFER TO IN THE SAID LETTER.FROM THESE LETTERS ON THING B ECOMES CLEAR THAT ASSESSEE IS WELL AWARE OF PROCEDURAL ASPECT AND LEGAL PROVISIONS OF THE ACT. 3.3. WE ARE AWARE THAT ADOPTING A LIBERAL VIEW IN CONDON ING DELAY IS ONE OF THE GUIDING PRINCIPLES IN THE REALM OF BELATED APPEALS,BUT LIBERAL APPROAC H CANNOT BE EQUATED WITH A LICENCE TO FILE APPEALS AT WILL-DISREGARDING THE TIME LIMITS FIXED BY THE STATUTES.NO DOUBT THAT ASSESSEES ARE ENTITLED TO WAIT UNTIL THE LAST DATE OF THE LIMITAT ION FOR FILING OF THE APPEAL,BUT WHEN THEY ALLOW TH E LIMITATION TO EXPIRE AND COME FORWARD WITH A EXPLAN ATION ENUMERATING REASONABLE CAUSES FOR NOT FILING THE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE STATUTE,THEN THE CAUSES,SO SHOWN,MUST ESTABLISH THAT BECAUSE OF SOME EVENT OR CIRCUMSTANC ES ARISING BEFORE LIMITATION EXPIRED.EXCEPT FOR THE INACTION AND NEGLIGENCE OF THE ASSESSEE,TH ERE ARE NO OTHER REASON FOR FILING A BELATED APPEAL.WE HAVE AVOIDED USING ADJECTIVES BEFORE THE WORDS INACTION AND NEGLIGENCE,WHICH ARE GENERALLY USED BY THE HIGHER FORUMS OF JUDICIARY WH EN THEY FIND THAT DELAY IS RESULT OF TOTAL LACK OF PRUDENCE.TIMELY ACTION IS THE ESSENCE OF DAY-TOD AY ACTIVITIES OF HUMAN BEING - A FARMER NOT SOWING HIS FIELDS IN TIME AFTER THE RAINS HAS TO S UFFER.PRINCIPLES OF NATURE ARE EQUALLY APPLICABLE TO HUMAN BEHAVIOUR,INCLUDING THE JUDICIAL SYSTEM.NO ACTION WAS TAKEN BY THE ASSESSEE FOR A LONG PERIOD TO FOLLOW UP HIS APPEAL. SO,IF THE FAA FOUND THAT NO SATISFACTORY CAUSE, NOT TO SPEAK OF SUFFICIENT CAUSE,HAS BEEN SHOWN BY THE ASSESSEE,THEN FAULT DOES LIES WITH THE ASSES SEE AND NOT WITH HIM. ASSESSEE,ITSELF HAS TO BE BLAMED FOR THE UNCOMFORTABLE SITUATION IN WHICH IT FINDS NOW.FOR A PERIOD OF MORE THAN THREE YEARS,IT DID NOT BOTHER TO FIND OUT THE OUTCOME OF THE APPEAL IT HAD FILED AND THAT ALSO WHEN RECOVERY PROCEEDINGS WERE BEING UNDERTAKEN BY THE D EPARTMENT.BANK ACCOUNT OF THE ASSESSEE WERE ATTACHED AS PER THE DOCUMENTS AVAILABLE IN THE PB.IT CONTACTED AO,TRO AND THE CIT FOR STAYING DEMAND,BUT NO EFFORT WAS MADE TO FIND OUT T HE FATE OF THE APPEAL.IN OUR OPINION BEHAVIOUR OF THE ASSESSEE CAN BE TERMED AS PERSONIF IED INACTION AND NEGLIGENCE.COURTS ARE OF UNANIMOUS OPINION THAT ACT OF NEGLIGENCE AND INACTI ON DO NOT CONSTITUTE REASONABLE CAUSE.WE ARE ALSO OF THE OPINION THAT BY NOT FILING APPEAL IN TI ME BEFORE THE FAA,ASSESSEE HAD ALLOWED THE STATE TO BELIEVE THAT IT HAD A VESTED RIGHT IN ITS FAVOUR.RIGHTS OF THE SOVEREIGN ARE AS IMPORTANT AS THAT OF THE TAX-PAYERES.IN MATTER OF CONDONATION OF DELAY BOTH HAVE TO SHOW A SUFFICIENT CAUSE WHICH A PRUDENT PERSON CAN BELIEVE.IN THE CASE UNDE R CONSIDERATION SAME IS ABSENT. WE ARE AWARE THAT AFFIDAVITS EXPLAINING THE DELAY I S NOT A PRE-CONDITION FOR ACCEPTING BELATED APPEALS.BUT, AFFIDAVITS THROW LIGHT ON THE SURROUND ING CIRCUMSTANCES AND THOUGHT PROCESS OF AN ASSESSEE. IN THE CASE BEFORE US,WE FIND THAT NO AFF IDAVIT WAS FILED BEFORE THE FAA OR US.WE ARE NOT DECIDING THE CASE AGAINST THE ASSESSEE BECAUSE OF THE SAID REASON ALONE,BUT AFFIDAVIT WOULD HAVE HELPED US TO FIND WHETHER OR NOT ANY SUFFICIEN T CAUSE WAS THERE,IF WE WERE AWARE OF SEQUENCES OF THE EVENTS AND THE CIRCUMSTANCES THAT LED TO DEALY. AN ASSESSEE WHO CLAIMS THAT IT HAD WON THE CASE AT THE LEVEL OF THE HONBLE APEX COURT OR WAS SUCCESSFUL BEFORE THE ITAT,CANNOT BE TREATED AN IGN ORANT ASSESSEE AS THE APPELLANTS OF THE CASE OF RAMNATH SAO(SUPRA).BESIDES,THE ASSESSEE WAS AWARE T HAT THE CBDT HAS ISSUED INSTRUCTION WITH REGARD TO STAY OF DEMAND.ASSESSEE,A CORPORATE-ASSES SEE,FILING RETURNS OF INCOME OF LACS OF RUPEES AND ASSISTED BY HIGHLY QUALIFIED PROFESSIONA LS CANNOT TAKE SHADOW OF UMBRELLA OF IGNORANCE OF THE PROVISIONS OF LAW.IT IS ALSO NOT T HE CASE OF THE ASSESSEE THAT IT WAS GUIDED BY THE WRONG ADVICE OF THE PROFESSIONAL OR IT TOOK TIME TO CONSULT PROFESSSIONALS.AN INDIVIDUAL OF A SMALL PLACE AND AN ISO 9001-2000-COMPANY CANNOT BE EQUATED,WHILE CONSIDERING THE CONDONATION OF DELAY. 10 ITA NO. 7167/MUM/2011 (AY- 2005-06) PRASHANT PROJEC TS LTD. THEREFORE,CONSIDERING THE PECULIAR FACTS AND CIRCUM STANCES OF THE CASE WE UPHOLD THE ORDER OF THE FAA AND DECIDE THE EFFECTIVE GROUND OF APPEAL AGAIN ST THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS DISALLOWED . / )0 !/) 2 3 ( - !4 ( ) 56 . ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER,2013 . . ( +,' 7 8! 4 ) , 2013 , ( - 9 SD/- SD/- ( . : : : : . . B.R.MITTAL ) ( / RAJENDRA ) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 8! /DATE: 04 TH SEPTEMBER,2013 SK . . . . ( (( ( %); %); %); %); <;') <;') <;') <;') / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / #$ 2. RESPONDENT / %&#$ 3. THE CONCERNED CIT (A) / = > , 4. THE CONCERNED CIT / = > 5. DR C BENCH, ITAT, MUMBAI / ;?- %)! , . . . 6. GUARD FILE/ - @ &;) &;) &;) &;) %) %)%) %) //TRUE COPY// .! / BY ORDER, A / 5 DY./ASST. REGISTRAR , /ITAT, MUMBAI