ORICON ENTERPRISES, MUMBAI V. ASST CIT CEN CIR 20, MUMBAI

ITA 7387/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1049 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 11-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUBHACHAM RAM
• Keywords: Loose papers; Period of limitation; Question of law; Reasonable cause; Condonation of delay
• Section: 143(3); 80HHC

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.7387/MUM/2014 ASSESSMENT YEAR: 2007-08 M/S ORION ENTERPRISES, FLAT NO.602B, FORESHORE APTS, JUHU TARA ROAD, SANTACRUZ WEST, MUMBAI-400049 / VS. ACIT, CENTRAL CIRCLE-20, MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. AABFO0229Q !' # / ASSESSEE BY NONE $ / REVENUE BY SHRI SUBHACHAM RAM CIT-DR % $& ' # ( / DATE OF HEARING : 04/05/2017 ' # ( / DATE OF PRONOUNCEMENT 05/05/2017 ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 12/02/2014 OF THE FIRST APPELLATE AUTHORITY, MUMBAI , CHALLENGING CONFIRMING THE SUM OF RS.7.5 LAKHS TO T HE INCOME OF THE ASSESSEE U/S 69A OF THE INCOME TAX AC T, 1961 (HEREINAFTER THE ACT) AS UNEXPLAINED MONEY OF THE T WO VOUCHERS DATED 14/06/2006 AND 08/06/2006 REPRESENTI NG THE CASH TRANSACTION AND FURTHER ADDING RS.15 LAKH AS UNACCOUNTED SALES ON THE BASIS OF LOOSE PAPERS RECO VERED DURING THE COURSE OF SEARCH. 2. DURING HEARING, NONE WAS PRESENT FOR THE ASSESSEE, WHEREAS, SHRI SUBHACHAM RAM, LD. CIT-DR, WAS PRESENT FOR THE REVENUE. IT IS SEEN THAT THIS APPEA L WAS FILED BY THE ASSESSEE ON 11/12/2014. REGISTERED NOTICE OF HEARING WAS SENT TO THE ASSESSEE ALONG WITH DEFECT MEMO WAS ISSUED. ON 28/09/2016, THE APPEAL WAS ADJOURNED TO 07/11/2016 AT THE REQUEST OF THE ASSESSEE VIDE LETT ER DATED 28/09/2016. AGAIN ON 07/11/2016, THE HEARING WAS ADJOURNED AT THE REQUEST OF THE ASSESSEE. ON 09/03/ 2017, THE ASSESSEE DID NOT APPEAR AND THUS, LAST OPPORTUN ITY WAS PROVIDED TO THE ASSESSEE. A REGISTERED NOTICE OF HE ARING WAS ISSUED ON 07/04/2017 FOR HEARING FOR TODAY I.E. 04/05/2017, WHICH WAS DULY RECEIVED BY THE ASSESSEE AS IS EVIDENT FROM ACKNOWLEDGMENT RETURNED BY THE POSTAL ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 3 AUTHORITIES. IN SPITE OF LAST OPPORTUNITY PROVIDED TO THE ASSESSEE, NEITHER PRESENTED ITSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE ITS APPEAL, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE, AND TEND TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVA ILABLE ON RECORD. 2.1. AT THE OUTSET, THE LD. CIT-DR POINTED OUT THA T THE APPEAL IS TIME BARRED BY 1382 DAYS, WHICH HAS NOT B EEN EXPLAINED BY THE ASSESSEE. THE ADDITION SUSTAINED B Y THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS STRONGLY DEFENDED. 2.2. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. CIT - DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 2.4. NOW, QUESTION ARISES, WHETHER THERE IS BONA-F IDE DELAY. BEFORE US, AS MENTIONED EARLIER, THE ASSESSE E NEITHER APPEARED NOR MOVED ADJOURNMENT PETITION, IN SPITE OF THE FACT THAT LAST OPPORTUNITY WAS PROVIDED TO THE ASSE SSEE. IT WAS THE DUTY OF THE ASSESSEE TO EXPLAIN THE DELAY O F EACH DAY. THE ASSESSEE WAS ISSUED DEFECT MEMO TO THAT A LSO THE ASSESSEE VIDE APPLICATION DATED 07/11/2016 ASKED FO R ONE WEEK TIME TO CURE THE DEFECT. IN SPITE OF PROVIDING OPPORTUNITY TO THE ASSESSEE, NEITHER DEFECT WAS CUR ED NOR ANY APPLICATION WAS FILED FOR CONDONATION OF DELAY. IT IS PURELY THE CASUAL APPROACH OF THE ASSESSEE. IN SUCH AS ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 4 SITUATION, THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF B.S. INTERNATIONAL (ITA NO.4683/MUM/2012), ORDER DATED 26/10/2015, SUPPORTS THE CASE OF THE REVENUE. THE RELEVANT PORTION OF TH E SAME IS REPRODUCED HEREUNDER FOR READY 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 PAR ANJAPE, LD. COUNSEL FOR THE ASSESSEE, AND SHRI VINOD KUMAR, LD. DR. AT THE OUTSET, THE LD. DR, POINTED OUT THAT THIS APPEA L IS TIME BARRED BY 1625 DAYS. THE LD. COUNSEL FOR THE ASSES SEE INVITED OUR ATTENTION TO THE APPLICATION DATED 10/12/2012, FILED BY THE ASSESSEE, FOR CONDONING THE DELAY ALONG WITH AN AFFIDAVIT FILED BY THE MANAGING PARTNER OF THE ASSESSEE FIRM. THE CONTENTION OF THE ASSESSEE IS THAT THERE IS SUFFICI ENT REASON FOR THE DELAY WHICH MAY BE CONDONED. HOWEVER, THE LD. DR, STRONGLY OPPOSED THE DELAY BY CONTENDING THAT THERE IS NO REASONABLE CAUSE FOR HUGE DELAY, THEREFORE, MAY NOT BE CONDONED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE US , THE LD. COUNSEL FOR THE ASSESSEE PLACE RELIANCE UPON THE DE CISION FROM HONBLE APEX COURT IN COLLECTOR, LAND 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 ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 5 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 ASSESSMENT ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS PASSED ON 27/02/2006 DISA LLOWING THE CLAIMED DEDUCTION U/S 80HHC OF THE ACT ON THE E XPORT INCENTIVES OF DEPB. 2.2. THE ASSESSEE FELT AGGRIEVED AND FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY ON 10/04/2 006, WHEREIN, THE APPEAL OF THE ASSESSEE WAS DISPOSED OF F ON 13/12/2007 GRANTING PART RELIEF TO THE ASSESSEE AND DISALLOWING THE CLAIMED 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 RESULTED INTO DELAY OF 1625 DAYS. THE ASSESSEE RELIED UPON THE OBSERVATION OF THE HONBLE APEX COURT IN THE CASE 167 ITR 471(SC) COLLECTOR, LAND ACQUISITIO N VS KATIJI. WE FIND THAT THE HONBLE APEX COURT HEL D AS UNDER:- WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUS E OF A NON- DELIBERATE DELAY. THE ASSESSEE ALSO PLACED RELIANCE UPON THE FOLLOWING OBSERVATIONS OF THE APEX COURT IN THE CAS E ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 6 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 IS NOT BECAUSE ON THE EXPIRY OF SUCH TIM E A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. RULES OF LIMITAT ION ARE NOT MEANT TO DESTROY THE RIGHTS OF PARTIES. THEY ARE ME ANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL RE MEDY 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 INJURY SO SUFFERED. THE LAW OF LIMITAT ION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MA XIM INTEREST REIPUBLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF THE PARTIES. THEY ARE MEAN T TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS BUT SEEK THEIR REMEDY PROMPTLY. THE IDEA IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVELY FIXED PERIOD OF TIME. FURTHER RELIANCE WAS PLACED UPON THE DECISION AND OBSERVATION MADE THEREIN BY THE HONBLE KERALA HIGH COURT IN THE CASE OF VASU & CO. VS. STATE OF KERALA (2001) 124 STC 124 (KER.). 'WE ARE OF THE VIEW THAT IT IS NOT NECESSARY IN ALL CASES TO GIVE EVIDENCE REGARDING THE DELAY IN FILING APPEALS. THE AFFIDAVITS ARE DOCUMENTS OF EVIDENCE. ON THE BASIS OF THE AFFI DAVITS, IF THE COURT IS SATISFIED THAT SUFFICIENT EXPLANATION HAS BEEN GIVEN FOR CONDONING DELAY, THEN THE AFFIDAVIT CAN BE ACCEPTED AS EVIDENCE. IF PROOF OF WHAT IS STATED IN THE AFFIDAV IT IS INSISTED ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 7 ON, THAT WILL PROLONG THE LITIGATION. HERE IS A CAS E WHERE THE ASSESSEE. IS AGGRIEVED BY THE ORDERS OF THE ASSESSI NG AUTHORITIES. ACCORDING TO HIM, HE HAS BEEN DIRECTED TO PAY TAX WHICH HE WAS NOT BOUND TO PAY AND ON THE GROUND OF DELAY THE TRIBUNAL HAS SHUT THE DOORS AGAINST HIM. OF COURSE, IF THE PETITIONER HAD BEEN NEGLIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME T O HIS SUCCOUR. HERE, WE FIND SOME TRUTH IN WHAT THE PETIT IONER HAD STATED IN SO FAR AS HE HAS APPROACHED THIS COURT BY FILING ORIGINAL PETITION. IT WOULD HAVE BEEN BETTER, IF SO ME EVIDENCE WAS GIVEN REGARDING HIS CASE THAT THE PARTICULAR AD VOCATE DID NOT FILE APPEALS. BUT THE COURT CAN TAKE JUDICIAL N OTICE OF THE DIFFICULTY IN GETTING SUCH AFFIDAVITS'. 2.4. IN THE LIGHT OF THE OBSERVATIONS MADE BY THE HONBLE COURTS, WE ARE EXPECTED TO ANALYZE THE FACT S AND THE REASONS OF DELAY IN FILING THE APPEAL BEFORE THIS T RIBUNAL. IN THE AFFIDAVIT OF THE ASSESSEE, FILED BEFORE THIS TR IBUNAL, WE NOTE THAT EVEN THE ASSESSEE ITSELF HAS ADMITTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DISPOSED OFF T HIS APPEAL VIDE ORDER DATED 13/12/2007 AND THE ORDER WA S RECEIVED BY THE REPRESENTATIVE OF THE ASSESSEE, WHO KEPT THE ORDER IN THE DRAWER AND THEREAFTER THE ASSESSEE MET WITH AN ACCIDENT AND COULD NOT ATTEND THE OFFICE. THE APPEA L WAS FILED BY THE ASSESSEE ON 25/05/2012, WHICH RESULTED INTO DELAY OF 1625 DAYS. IN THE APPLICATION OF THE ASSESSEE (IN PARA-3), IT HAS BEEN MENTIONED THAT THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY WAS RECEIVED BY THE OFFICE ASSISTANT, WHE REAS, IN THE AFFIDAVIT, THE ORDER WAS CLAIMED TO BE RECEIVED BY THE PEON OF THE FIRM, THEREFORE, THE CLAIM OF THE ASSESSEE IS I TSELF CONTRADICTORY. FURTHER, THE ASSESSEE MET WITH AN ACCIDENT ON 30/07/2010, WHEREAS, THE ORDER OF THE LD. FIRST APP ELLATE ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 8 AUTHORITY IS DATED 13/12/2007, THUS, THE CLAIM OF T HE ASSESSEE THAT HE COULD NOT FILE BEFORE THE TRIBUNAL , DUE TO ACCIDENT IS MERELY FOR ARGUMENT SAKE AND THE ASSESS EE WAS HAVING SUFFICIENT TIME TO FILE THE APPEAL. IT IS A LSO NOTED THAT THE ASSESSEE WAS ATTENDING OTHER APPEALS AND ONLY W HEN THE RECOVERY NOTICE WAS SENT TO THE ASSESSEE BY THE DEP ARTMENT, THE ASSESSEE TOOK A DECISION TO FILE THE APPEAL. IT IS ALSO NOTED THAT EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS WELL AS BEFORE THE LD. ASSESSING OFFICER, THE AS SESSEE WAS REPRESENTED BY AUTHORIZED REPRESENTATIVE, MEANING T HEREBY, THE ASSESSEE WAS WELL EQUIPPED WITH THE ADVICE OF T HE LEGAL REPRESENTATIVES AND EVEN OTHERWISE, THE APPEAL WAS TO BE PREPARED/FILED BY THE REPRESENTATIVES AND NOT BY TH E ASSESSEE. IT IS NOT THE CASE THAT THE ASSESSEE WAS NOT IN A P OSITION TO EVEN SIGN THE DOCUMENTS/APPEAL MEMO. IT WAS CLEARLY A CASE OF CONSCIOUS DECISION NOT TO FILE THE APPEAL AT EAR LY STAGE AND TO FILE THE APPEAL AT THE LATER STAGE. THE ASSESSEE WAS HAVING SUFFICIENT TIME AND WAS NOT PREVENTED BY ANY SUFFIC IENT CAUSE. IT IS NOT A CASE OF SMALL DELAY RATHER DELAY OF 162 5 DAYS ( FOUR YEAR AND FORTY FIVE DAYS). BROADLY, WE ARE OF THE V IEW, THAT SUCH A HUGE DELAY THAT TOO IN THE ABSENCE OF PLAUSI BLE REASONING, SHOULD NOT BE CONDONED. THE ASSESSEE HAS NOT EXPLAINED PROPERLY THE REASON OF DELAY, WHICH THE A SSESSEE, OTHERWISE, EXPECTED TO ADDUCE THE DELAY WITH DOCUME NTARY EVIDENCE. THIS IS A CLEAR CUT CASE OF DELIBERATE D ELAY OR CONSCIOUSLY FILING THE DELAY AFTER SUCH A LONG TIME . AS PER PROVISION OF SECTION 253(3), (3)A OF THE ACT, THE A SSESSEE IS TO FILE THE APPEAL WITHIN 60 DAYS FROM THE DATE OF REC EIPT OF THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY, WHEREAS , THE ASSESSEE FILED THE APPEAL AFTER 1625 DAYS, WHICH IS EVEN BEYOND IMAGINATION, ESPECIALLY WHEN, THE ASSESSEE H AS NOT EXPLAINED THE REASON OF DELAY. WE ARE AWARE THAT TH E PRIMARY ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 9 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 NEGLIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME TO HIS RESC UE. 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 LEGAL INJURY, IF ANY, SUFFERED BY THE ASSESSEE. HOWEVER, IN THE P RESENT APPEAL, THERE IS A CLEAR CUT CONSCIOUS DELAY OF 162 5 DAYS, WHICH, IN OUR VIEW, IF CONDONED, UNDER THE FACTS AV AILABLE ON RECORD, THEN THERE IS NO NEED TO KEEP THE PROVISION UNDER THE LIMITATION ACT. EVEN THE HONBLE APEX COURT IN COL LECTOR, LAND ACQUISITION VS KATIJI (SUPRA) HAS CLEARLY MENTIONED ABOUT NON- DELIBERATE DELAY. THUS, IN OUR HUMBLE OPINION, THE CASES RELIED BY THE ASSESSEE CANNOT COME TO THE RESCUE OF THE ASSESSEE, BECAUSE THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE/REASON, SUBSTANTIATING THAT THE DELAY WAS CAUSED DUE TO THE REASONS WHICH WERE BEYOND HIS/ITS CONTRO L AND AT THE SAME TIME, THE REASONS WERE GOOD AND SUFFICEIN T, RATHER, IT IS A CLEAR CUT CASE OF CONSCIOUS DECISION. EVEN, THE HONBLE APEX COURT IN VEDABAI ALIAS VAIJAYANATABAI BABURAO VS SHANTARMA BAVURAO PATIL R EPORTED IN (2002) 253 ITR 798 (SC) MADE A DISTINCTION IN DE LAY AND INORDINATE DELAY OBSERVED (PAGE 799) AS UNDER:- IN EXERCISING DISCRETION U/S 5 OF THE LIMITATION A CT, THE COURT SHOULD ADOPT A PRAGMATIC APPROACH. A DISTINCTION MUST BE M ADE BETWEEN A CASE, WHERE THE DELAY IS INORDINATE AND A CASE WHER E THE DELAY IS OF A ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 10 FEW DAYS. WHEREAS, IN THE FORMER CASE, THE CONSIDER ATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR, SO THE CASE CALLS FOR MORE CAUTIOUS APPROACH. IN BRIJ INDER SINGH VS KASHIRAM (AIR) 1917 PC 156 OBSERVED THAT TRUE GUIDE FOR A COURT TO EXERCISE TH E DISCRETION U/S 5 OF THE LIMITATION ACT IS WHETHER THE APPELLAN T ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. IF THE TOTALITY OF FACTS, AVAILABLE ON RECORD, ARE JUDICIOUSLY EXAM INED THEN IT CAN BE SAID THAT THE PROVISIONS RELATING TO PRESCRI PTION OF LIMITATION IN EVERY STATUTE MUST NOT BE CONSTRUED S O LIBERALLY THAT IT WOULD HAVE THE EFFECT OF TAKING AWAY THE BE NEFIT ACCRUING TO THE OTHER PARTY IN A MECHANICAL MANNER. WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION A ND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL, THERE SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. NOW, IT IS A SETTLED PRINCIPLE OF LAW THAT THE PROVISIONS RELATING TO SPECIFIED PERIO D OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CON SEQUENCES. IN THIS REGARD, REFERENCE CAN BE MADE TO THE LATEST DECISION IN THE CASE OF P. K. RAMACHANDRAN V. STATE OF KERALA, AIR 1998 SC 2276. THE RELEVANT PORTION READS AS UNDER (PAGE 2277):- LAW OF LIMITATION MAY HARSHLY AFFECT A PARTICULAR PARTY BUT IT HAS TO BE APPLIED WITH ALL ITS RIGOUR WHEN 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 T HE DELAY CANNOT BE SUSTAINED. THIS APPEAL, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY, THE APPLICATION F OR CONDONATION OF DELAY FILED IN THE HIGH COURT WOULD STAND REJECTED AND THE ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 11 MISCELLANEOUS 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 APPROPRIATE REASONS, IN THAT EVENT IT CANNOT GIVE RISE TO A QUE STION 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, HE LD 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 TRIBUNAL 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 REA SONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HA VE EXERCISED THEIR DISCRETION AND WE FIND NOTHING PERVERSE IN TH E IMPUGNED ORDERS. SPECIFIC REASONS HAVE BEEN GIVEN IN THE ORD ER WHICH ARE NOT ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 12 ONLY LOGICAL BUT EVEN REFLECT THE CONDUCT OF THE AP PELLANT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD IN SPITE OF SEEKING TIME. THE AUTHORITIES WHICH ARE EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTR OVERSY A QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE A UTHORITY IS IN CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTL Y A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE NOT ABLE TO APPRECIATE THE CONTE NTION OF LEARNED COUNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS AP PLIED WRONG PRINCIPLES OF LAW OR THAT IT HAS RELIED UPON INCORR ECT PRINCIPLES OF LAW REGULATING THE CONTROVERSY IN ISSUE (REFER [197 6] 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 SUBJE CT. HAVING COGITATED OVER THE MATTER AND FOR THE REASON S AFORESTATED, WE DO NOT FIND ANY ERROR OF JURISDICTION OR OTHERWI SE IN THE IMPUGNED ORDER. WE ARE CONSTRAINED TO HOLD THAT THE VIEW OF THE TRIBUNAL IN DECLINING THE REFERENCE TO THIS COURT I S FULLY JUSTIFIED AND THUS, WE DECLINE TO ISSUE ANY DIRECTION TO THE INCO ME-TAX APPELLATE TRIBUNAL, AMRITSAR, TO STATE AND REFER THE AFORESAI D QUESTION, AS QUESTION OF LAW, TO THIS COURT IN EXERCISE OF ITS P OWER UNDER SECTION 256 OF THE ACT. WITH THE ABOVE OBSERVATIONS, THIS PETITION IS DISMI SSED. ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 13 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 DECISI ON FIRSTLY, NOT TO FILE THE 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 BEYO ND 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 DELAY IN FILING THE AP PEAL. THE ASSESSEE WAS WILFULLY NEGLIGENT OR IRRESPONSIBLE IN TAKING A DECISION, THUS, THE HUGE DELAY CANNOT BE CONDONED. WE ARE CONSCIOUS OF THE FACT THAT TECHNICALITIES SHOULD NO T COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE BUT IN CASE S, WHERE THE DELAY WAS BEYOND THE CONTROL OF THE ASSESSEE OR SOM E GENUINE DIFFICULTIES HINDERED HIS SMOOTH WAY. AS DISCUSSED EARLIER, IT IS CLEAR CUT CASE OF CONSCIOUS DECISION, THUS, WE FIND NO MERIT IN THE SELF MADE STORY OF THE ASSESSEE, THEREFORE, ON THIS ISSUE, WE ARE NOT AGREEING WITH THE ADMISSION OF THIS APPE AL, THUS, THE DELAY IS NOT CONDONED, THEREFORE, THE APPEAL 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 PRE SENT APPEAL, BEFORE US, THE ASSESSEE NEITHER CURED THE DEFECT NO R MOVED ANY CONDONATION PETITION FOR THE DELAY. THE APPROAC H OF THE ASSESSEE IS VERY CASUAL, THEREFORE, NO LENIENCY CAN BE EXTENDED TO THE ASSESSEE. THE ASSESSEE IS WILFULLY NEGLIGENT ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 14 OR IRRESPONSIBLE, THEREFORE, THE HUGE DELAY OF 1382 DAYS CANNOT BE CONDONED. WE ARE CONSCIOUS OF THE FACT T HAT TECHNICALITIES SHOULD NOT COME IN THE WAY OF SUBSTA NTIAL CAUSE OF JUSTICE BUT IN CASES, WHERE THE DELAY WAS BEYOND THE CONTROL OF THE ASSESSEE OR SOME GENUINE DIFFICU LTIES HINDERED HIS SMOOTH WAY. THE FULL BENCH OF THE ORIS SA HIGH COURT, IN THE CASE OF BRAJABANDHU NANDA V. CIT [196 2] 44 ITR 668, CONSIDERING SOMEWHAT SIMILAR QUESTION, WH ERE THE APPEAL WAS BARRED BY TIME AND REFERENCE OF THE QUES TION 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 TRIBUNAL 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 REA SONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HA VE EXERCISED THEIR DISCRETION AND WE FIND NOTHING PERVERSE IN TH E IMPUGNED ORDERS. SPECIFIC REASONS HAVE BEEN GIVEN IN THE ORD ER WHICH ARE NOT ONLY LOGICAL BUT EVEN REFLECT THE CONDUCT OF THE AP PELLANT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD IN SPITE OF SEEKING TIME. THE AUTHORITIES WHICH ARE EXERCISING QUASI-JUDICIAL POWERS IN DISCHARGE OF THEIR STATUTORY FUNCTIONS, INEVITABLY HAVE TO BE VESTED WITH SOME ELEMENT OF DISCRETION IN EXERCISE OF SUCH POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, PER SE WOULD NOT MAKE SUCH CONTR OVERSY A ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 15 QUESTION OF LAW. SO FAR AS SUCH DECISION OF THE A UTHORITY IS IN CONFORMITY TO THE PRINCIPLE OF LAW AND IS APPARENTL Y A PRUDENT ONE, THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. WE ARE NOT ABLE TO APPRECIATE THE CONTE NTION OF LEARNED COUNSEL FOR THE PETITIONER THAT THE TRIBUNAL HAS AP PLIED WRONG PRINCIPLES OF LAW OR THAT IT HAS RELIED UPON INCORR ECT PRINCIPLES OF LAW REGULATING THE CONTROVERSY IN ISSUE (REFER [197 6] 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 SUBJE CT. HAVING COGITATED OVER THE MATTER AND FOR THE REASON S AFORESTATED, WE DO NOT FIND ANY ERROR OF JURISDICTION OR OTHERWI SE IN THE IMPUGNED ORDER. WE ARE CONSTRAINED TO HOLD THAT THE VIEW OF THE TRIBUNAL IN DECLINING THE REFERENCE TO THIS COURT I S FULLY JUSTIFIED AND THUS, WE DECLINE TO ISSUE ANY DIRECTION TO THE INCO ME-TAX APPELLATE TRIBUNAL, AMRITSAR, TO STATE AND REFER THE AFORESAI D QUESTION, AS QUESTION OF LAW, TO THIS COURT IN EXERCISE OF ITS P OWER UNDER SECTION 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 R AM MOHAN KABRA (2002) 257 ITR 773 (P& H). IN THE AFORE SAID DECISION OF THE TRIBUNAL, WHEREIN ONE OF US (JUDICI AL MEMBER) IS SIGNATORY TO THE ORDER HAS DISCUSSED VAR IOUS JUDICIAL PRONOUNCEMENTS/ FACTS OF THE CASE AND THEN REACHED ITA NO.7387/MUM/2014 M/S ORIAN ENTERPRISES 16 TO A CONCLUSION, THEREFORE, THE SAME ARE NOT BEING REPEATED HERE IN THIS ORDER, BEING MATTER OF RECORD. SO FAR AS, THE DECISION FROM HONBLE APEX COURT IN THE CASE OF IMPROVEMENT TRUST LUDHIANA VS UJAGAR SINGH & ORS. ( CIVIL APPEAL NO.2395 AND 2397 OF 2008) IS CONCERNED, WE N OTE THAT THE FACTS ARE CLEARLY DISTINGUISHABLE AND THER E WAS DELAY OF ONLY TWO MONTHS AND FEW DAYS. IN THE PRESENT AP PEAL, THE WILFUL NEGLIGENCE IS ESTABLISHED, THEREFORE, THE HU GE DELAY CANNOT BE CONDONED, CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS DISMISSED AS NOT ADMITTED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05TH MAY, 2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; - DATED : 05/05/2017 F{X~{T? P.S/. .. , !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 4# / CIT(A)- , MUMBAI 5. 6$7# , 3 ./(. + , / DR, ITAT, MUMBAI 6. 8!9 / GUARD FILE. ! / BY ORDER, 26/## //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI