MOHD GAFURUDDIN F. SIDDIQUE, MUMBAI V. CIT 15, MUMBAI

ITA 79/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8463 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 02-02-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 04-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS VIDISHA KALRA
• Keywords: Period of limitation; Question of law; Condonation of delay
• Section: 143(3); 263

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO.79/MUM/2012 ASSESSMENT YEAR: 2006-07 MOHD. GAFURUDDIN F. SIDDIQUI, FLAT NO.1, GR. FLR, SAADATH MANZIL, 35, BORA ST. NULL BAZAR, BEHIND SAFAI MASJID, MUMBAI-400003 / VS. CIT-15, MUMBAI ( !'# /ASSESSEE) ( / REVENUE) PAN. NO . AAPPS1966C % & ' / DATE OF HEARING : 02/02/2017 & ' / DATE OF ORDER: 02/02/2017 !'# ! / ASSESSEE BY SHRI SAMEER DALAL ! / REVENUE BY MRS. VIDISHA KALRA-CIT-DR ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 2 / O R D E R PER JOGINDER SINGH(JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 31/07/2009 OF THE LD. COMMISSIONER OF INCOME TAX, MUMBAI, INVOKING REVISIONAL JURISDICTION U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING OF THIS APPEAL, MS. VIDISHA KALR A, LD. CIT-DR, CONTENDED THAT THERE IS HUGE DELAY OF 8 09 DAYS, WHICH CANNOT BE CONDONED AS THE ASSESSEE HAS NOT EXPLAINED THE DELAY. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE, SHRI SAMEER DALAL, CONTENDED THAT THE ASS ESSEE HAS FILED AN APPLICATION FOR CODONATION OF DELAY, S UPPORTED BY AN AFFIDAVIT. IT WAS CONTENDED THAT THE ORDER PA SSED U/S 263 OF THE ACT WAS RECEIVED BY THE ASSESSEE ON 18/0 8/2009 AND WAS HANDED OVER TO THE TAX CONSULTANT MR. M.S. ALAM SIDDIQUEE, WHO WAS HANDLING THE TAXATION WORK OF TH E ASSESSEE FOR PAST SEVERAL YEARS. THE TAX CONSULTANT AFTER GOING THROUGH THE ORDER, ADVISED THE ASSESSEE NOT T O FILE ANY APPEAL. THEREAFTER, THE ASSESSMENT WAS COMPLET ED BY THE ASSESSING OFFICER ON 27/12/2010 U/S 143(3) R.W. S 263 OF THE ACT ON 27/12/2010. AGAINST THIS ORDER, NEW CONSULTANT ADVISED THE ASSESSEE TO FILE APPEAL AGA INST THE 263 ORDER DATED 31/07/2009, WHICH CAUSED DELAY OF 8 09 DAYS. IN VIEW OF THIS FACT, THE LD. COUNSEL CONTEND ED THAT DELAY MAY BE CONDONED. ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. NOW, QUE STION ARISES, WHETHER THERE IS BONA-FIDE DELAY, WHICH SHO ULD BE CONDONED. BEFORE COMING TO ANY CONCLUSION, HOWEVER , WE ARE NOT GOING INTO THE MERITS OF THE APPEAL AT THIS STAGE SINCE WE ARE ONLY ANALYZING WHETHER THERE WERE BONA -FIDE REASON, ON THE PART OF THE ASSESSEE, IN FILING THE APPEAL LATE BY 809 DAYS. AS MENTIONED EARLIER, THE ASSESSEE RE CEIVED THE ORDER U/S 263 OF THE ACT ON 18/08/2009 AND THE ASSESSEE WAS TO FILE THE APPEAL AGAINST THE ORDER W ITHIN 60 DAYS FROM THE RECEIPT OF ORDER. AS PER THE ASSESSE E, A DECISION WAS TAKEN NOT TO FILE THE APPEAL AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ON T HE ADVICE OF THEIR CHARTERED ACCOUNTANT/TAX CONSULTANT . WE FEEL, EVEN IF THE ASSESSEE ACTED UPON THE ADVICE OF THE CHARTERED ACCOUNTANT/TAX CONSULTANT, IT WAS A CONSC IOUS DECISION OF THE ASSESSEE NOT TO FILE AN APPEAL. TH E ASSESSEE REMAINED SILENT FOR ABOUT 809 DAYS AND THEREAFTER, ON SECOND ADVICE, AS CLAIMED BY THE ASSESSEE, FILED AP PEAL BEFORE THIS TRIBUNAL. ONE FACT IS CLEARLY OOZING O UT THAT FIRSTLY CONSCIOUSLY NOT FILING AN APPEAL AND THEREA FTER FILING THE APPEAL WAS A CONSCIOUS DECISION OF THE ASSESSEE . IN SUCH AS 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. ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 4 2.2. WE HAVE ALSO CONSIDERED THE DECISION 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 (2001) 124 STC 124 (KERALA.) WE HAVE PERUSED THE REASONS MENTIONED BY THE ASSESSEE IN ITS APPLICATION FOR CONDONOTION OF DELAY ALONG WITH THE CITED CASES. BEFORE US, THE ASSESSEE HAS RELIED UPON THE OBSERVATION OF THE HONBLE APEX COURT IN THE CASE 167 ITR 471(SC) COLLECTOR, LAND ACQUISITION VS KATIJI. 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 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. WE HAVE ALSO GONE THROUGH THE FOLLOWING OBSERVATIONS OF THE APEX COURT IN THE CASE 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 SUBSTANT IAL JUSTICE. THE TIME-LIMIT FIXED FOR APPROACHING THE COURT IN DIFFERENT SITUATIONS IS NOT BECAUSE ON THE EXPIRY O F SUCH TIME A BAD CAUSE WOULD TRANSFORM INTO A GOOD CAUSE. RULE S OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF P ARTIES. THEY ARE MEANT TO SEE THAT PARTIES DO NOT RESORT TO DILATORY TACTICS, BUT SEEK THEIR REMEDY PROMPTLY. THE OBJECT OF PROVIDING A LEGAL REMEDY IS TO REPAIR THE DAMAGE CA USED BY ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 5 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 LIMITATION IS THUS FOUNDED ON PUBLIC POLICY. IT IS ENSHRINED IN THE MAXIM INTEREST REIPU BLICAE UP SIT FINIS LITIUM (IT IS FOR THE GENERAL WELFARE THAT A PERIOD BE PUT TO LITIGATION). RULES OF LIMITATION ARE NOT MEA NT TO DESTROY THE RIGHTS OF THE PARTIES. THEY ARE MEANT T O 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. WE HAVE ALSO PERUSED 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 AFFIDAVITS, IF THE COURT IS SATISFIED THAT SUFFICIE NT EXPLANATION HAS BEEN GIVEN FOR CONDONING DELAY, THE N THE AFFIDAVIT CAN BE ACCEPTED AS EVIDENCE. IF PROOF OF WHAT IS STATED IN THE AFFIDAVIT IS INSISTED ON, THAT WILL P ROLONG THE LITIGATION. HERE IS A CASE WHERE THE ASSESSEE. IS A GGRIEVED BY THE ORDERS OF THE ASSESSING AUTHORITIES. ACCORDI NG 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 T O HIS SUCCOUR. HERE, WE FIND SOME TRUTH IN WHAT THE PETIT IONER HAD STATED IN SO FAR AS HE HAS APPROACHED THIS COUR T BY FILING ORIGINAL PETITION. IT WOULD HAVE BEEN BETTER , IF SOME EVIDENCE WAS GIVEN REGARDING HIS CASE THAT THE PART ICULAR ADVOCATE DID NOT FILE APPEALS. BUT THE COURT CAN TA KE JUDICIAL NOTICE OF THE DIFFICULTY IN GETTING SUCH A FFIDAVITS'. 2.3. THE HONBLE COURT IN VASU & COMPANY VS STATE OF KERALA HAS CLEARLY MENTIONED THAT IF THE PETITIONER IS ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 6 NEGLIGENT OR IRRESPONSIBLE, THE COURT CANNOT COME T O HIS RESCUE. THIS IS EXACTLY THE CASE BEFORE US. THE LAW OF LIMITATION FIXES A LIFE SPAN FOR SUCH LEGAL REMEDIE S FOR THE REDRESSAL OF A LEGAL INJURY, IF ANY, SUFFERED BY TH E ASSESSEE. HOWEVER, IN THE PRESENT APPEAL, THERE IS A CLEAR CU T CONSCIOUS DELAY OF 809 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 ACQUISITI ON VS KATIJI (SUPRA) HAS CLEARLY MENTIONED ABOUT NON-DELI BERATE DELAY. THUS, IN OUR HUMBLE OPINION, THE CASES RELI ED BY THE ASSESSEE CANNOT COME TO THE RESCUE OF THE ASSESSEE, BECAUSE THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE/R EASON, SUBSTANTIATING THAT THE DELAY WAS CAUSED DUE TO THE REASONS WHICH WERE BEYOND HIS/ITS CONTROL AND AT THE SAME T IME, THE REASONS WERE GOOD AND SUFFICIENT, RATHER, IT IS A CLEAR CUT CASE OF CONSCIOUS DECISION IN NOT FILING THE APPEAL AND THEREAFTER AFTER SUCH A HUGE DELAY, THERE IS AGAIN A CONSCIOUS DECISION TO FILE THE APPEAL. EVEN, THE HONBLE APEX COURT IN VEDABAI ALIAS VAIJAYANATABAI BABURAO VS SHANTARAM BAVURAO PATIL REPORTED IN (2002) 253 ITR 798 (SC) M ADE A DISTINCTION IN DELAY 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 MU ST BE MADE BETWEEN A CASE, WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS, IN THE FORMER CASE, THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL B E A RELEVANT FACTOR, SO THE CASE CALLS FOR MORE CAUTIOUS APPROAC H. ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 7 IN BRIJ INDER SINGH VS KASHIRAM (AIR) 1917 PC 156, IT WAS OBSERVED THAT TRUE GUIDE FOR A COURT TO EXERCIS E THE DISCRETION U/S 5 OF THE LIMITATION ACT IS WHETHER T HE APPELLANT ACTED WITH REASONABLE DILIGENCE IN PROSEC UTING THE APPEAL. IF THE TOTALITY OF FACTS, AVAILABLE ON REC ORD, ARE JUDICIOUSLY EXAMINED THEN IT CAN BE SAID THAT THE P ROVISIONS RELATING TO PRESCRIPTION OF LIMITATION IN EVERY STA TUTE MUST NOT BE CONSTRUED SO LIBERALLY THAT IT WOULD HAVE TH E 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 COND ONE 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 LIMITATI ON MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCE S. IN THIS REGARD, REFERENCE CAN BE MADE TO THE DECISION IN TH E 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 STAT UTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND T HE PERIOD OF LIMITATION ON EQUITABLE GROUNDS. THE DISCRETION EXE RCISED BY THE HIGH COURT, WAS, THUS, NEITHER PROPER NOR JUDICIOUS . THE ORDER CONDONING THE DELAY CANNOT BE SUSTAINED. THIS APPEA L, THEREFORE, SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSE QUENTLY, THE APPLICATION FOR CONDONATION OF DELAY FILED IN THE H IGH COURT WOULD STAND REJECTED AND THE MISCELLANEOUS FIRST AP PEAL SHALL STAND DISMISSED AS BARRED BY TIME. NO COSTS. XXXXXXXXXXXXX ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 8 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 HON'BLE APEX COURT OF INDIA IN THE CASE OF ORIE NTAL 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 SUPPO RT 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 DISCRETI ON FOR THE TRIBUNAL TO CONDONE DELAY FOR SUFFICIENT CAUSE ON T HE FACTS AND CIRCUMSTANCES OF EACH CASE. THE CONSISTENT VIEW IS THAT SUCH QUESTION WOULD BE A QUESTION OF FACT SIMPLICITER AND WOULD NOT BE COVERED UNDER THE PROVISIONS OF SECTION 256 OF THE ACT UNLESS SUCH EXERCISE OF D ISCRETION OR CONCLUSION ARRIVED AT WAS PERVERSE OR SO ILLOGICAL THAT NO REASONABLE PERSON COULD COME TO SUCH A CONCLUSION. THE AUTHORITIES HAVE EXERCISED THEIR DISCRETION AND WE FIND NOTHING PERVERSE IN THE IMPUGNED ORDERS. SPECIFIC REASONS H AVE BEEN GIVEN IN THE ORDER WHICH ARE NOT ONLY LOGICAL BUT E VEN 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 POWERS. MERELY BECAUSE ANOTHER VIEW WAS POSSIBLE OR ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 9 PERMISSIBLE ON THE SAME FACTS AND CIRCUMSTANCES, PE R SE WOULD NOT MAKE SUCH CONTROVERSY A QUESTION OF LAW. SO F AR AS SUCH DECISION OF THE AUTHORITY IS IN CONFORMITY TO THE P RINCIPLE OF LAW AND IS APPARENTLY A PRUDENT ONE, THE COURT WOULD NO RMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETI ON. WE ARE NOT ABLE TO APPRECIATE THE CONTENTION OF LEARNED COUNSE L 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 TH REE REASONS AMOUNT TO PALPABLY ERRONEOUS ERROR OF LAW IN EXERCI SE OF DISCRETION BY THE AUTHORITIES CONCERNED. ON THE CON TRARY, WE HAVE ALREADY HELD THAT THE REASONS STATED FOR DECLI NING THE REFERENCE ARE WELL IN CONSONANCE WITH THE SETTLED C ANNONS OF LAW GOVERNING THE SUBJECT. HAVING COGITATED OVER THE MATTER AND FOR THE REASON S AFORESTATED, WE DO NOT FIND ANY ERROR OF JURISDICTI ON OR OTHERWISE IN THE IMPUGNED ORDER. WE ARE CONSTRAINED TO HOLD T HAT THE VIEW OF THE TRIBUNAL IN DECLINING THE REFERENCE TO THIS COURT IS FULLY JUSTIFIED AND THUS, WE DECLINE TO ISSUE ANY DIRECTI ON TO THE INCOME-TAX APPELLATE TRIBUNAL, AMRITSAR, TO STATE A ND REFER THE AFORESAID QUESTION, AS QUESTION OF LAW, TO THIS COU RT IN EXERCISE OF ITS POWER 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). OUR VIEW AL SO FINDS SUPPORT FROM THE DECISION OF THE COORDINATE B ENCH IN THE CASE OF BRIHAN MUMBAI KREEDA & LALITKALA PRATISTHAN VS DIT (EXMP.) (ITA NO.6417/MUM/2013) ORDER DATED 20/11/2015. THE TOTALITY OF FACTS, CLEARLY INDICATE S THAT THE ASSESSEE TOOK A CONSCIOUS DECISION FIRSTLY, NOT TO FILE THE APPEAL AGAINST THE ORDER OF THE LD. COMMISSIONER AN D ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 10 THEREAFTER TOOK A DECISION TO FILE THE APPEAL. IT IS NOT THE CASE OF DELAY WHICH WAS BEYOND THE CONTROL OF THE A SSESSEE. SO FAR AS, THE AFFIDAVIT IS CONCERNED, IT IS A SELF SERVING DOCUMENT AND THE ASSESSEE HAS NOT EXPLAINED SATISFA CTORILY THE REASON OF DELAY IN FILING THE APPEAL. THE ASSES SEE WAS WILFULLY NEGLIGENT OR IRRESPONSIBLE IN TAKING A DEC ISION, THUS, THE HUGE DELAY CANNOT BE CONDONED. WE ARE CONSCIOU S OF THE FACT THAT TECHNICALITIES SHOULD NOT COME IN THE WAY OF SUBSTANTIAL CAUSE OF JUSTICE, BUT IN CASES, WHERE T HE DELAY WAS BEYOND THE CONTROL OF THE ASSESSEE OR SOME GENU INE DIFFICULTIES HINDERED HIS SMOOTH WAY. AS DISCUSSED EARLIER, IT IS CLEAR CUT CASE OF CONSCIOUS DECISION, THUS, WE F IND NO MERIT IN THE SELF MADE STORY OF THE ASSESSEE, THERE FORE, ON THIS ISSUE, WE ARE NOT AGREEING WITH THE ADMISSION OF THIS APPEAL, THUS, THE DELAY IS NOT CONDONED, CONSEQUENT LY, 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 02/02/2017. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER MUMBAI; ) DATED : 02/02/2017 F{X~{T? P.S/. .. ITA NO.79/MUM/2012 MOHD. GAFURUDDIN F.SIDDIQUE 11 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT (RESPECTIVE ASSESSEE) 2. ./,- / THE RESPONDENT. 3. 0 0 1$ ( + ) / THE CIT, MUMBAI. 4. 0 0 1$ / CIT(A)- , MUMBAI, 5. 34.$! , 0 +'! 5 , / DR, ITAT, MUMBAI 6. 6'7 / GUARD FILE. ! / BY ORDER, /3+$.$ //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI