ASTEC LIFE SCIENCES LTD, MUMBAI V. DCIT 2(1), MUMBAI

ITA 955/MUM/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0898 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: SS JITENDRA JAIN GOPAL SHARMA
• Keywords: Bogus purchase; Bonafide belief; Period of limitation; Reasonable cause; Accommodation entries; Condonation of delay; Bonafide mistake
• Section: 142(1); 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI G. MANJUNATHA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 955/MUM/2016 (ASSESSMENT YEAR: 2009-10) M/S. ASTEC LIFESCIENCES LTD. 3RD FLOOR, GODREJ ONE PIROJSHNAGAR,VIKROLI (E) MUMBAI 400020 VS. D C I T - 2(1) ROOM NO. 561, 5TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AAACA4832D APPELLANT RESPONDENT APPELLANT BY: S/S. JITENDRA JAIN, GOPAL SHARMA & AKRAM KHAN RESPONDENT BY: SHRI SATISHCHANDRA RAJORE DATE OF HEARING: 27.09.2018 DATE OF PRONOUNCEMENT: 05.10.2018 O R D E R PER G. MANJUNATHA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-4, MUMBAI DATED 26.11.2015 AND IT PERTAINS T O A.Y. 2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APP EAL: - (I) LD.CIT(A) IS ERRED TO REJECT THE PETITION TO CONDONE THE DELAY ON TECHNICAL GROUND THAT EACH DAYS DELAY WAS NOT EXPLA INED THOUGH IT WAS VERY WELL EXPLAINED THAT CHANGED DECISION TO FILE THE APPEAL WAS BASED ON THE REASONING GIVEN BY THE NEW CONSULTANT HIRED TO REPRESENT OUR APPEAL BEFORE CIT(A) FOR A.Y .2010-11 AND ALSO SUBSTANTIATED IN ORDER TO CONDONE THIS DELAY B OTH I.E. THE MERITORIOUS PROPOSITION JUSTIFYING ADMISSION OF THI S BELATED APPEAL AND THE REASONABLE CAUSE WHICH HAS PREVENTED IN FILING THE APPEAL BELATEDLY WHICH WERE NOT DISPUTED NOR FO UND FRIVOLOUS, THUS THE DELAY WAS NOT HELD AS DELIBERAT E OR AS A RESULT OF NEGLIGENCE AND HENCE OUGHT TO HAVE DECIDED ON ME RIT AS THE ISSUE WAS SIMILAR TO THE DISMISSED APPEAL OF A.Y.20 10-11. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A LIMITED COMPANY AND BEING ENGAGED IN THE BUSINESS OF AGROCHEMICAL A ND PHARMACEUTICAL ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 2 INDUSTRY FILED ITS RETURN OF INCOME FOR A.Y. 2009-1 0 ON 30 TH SEPTEMBER, 2009 DECLARING TOTAL INCOME OF ` 4,30,35,560/-. SUBSEQUENTLY THE CASE HAS BEEN REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT, 1 961 (HEREINAFTER 'THE ACT') FOR THE REASONS RECORDED ON THE BASIS OF INFO RMATION RECEIVED FROM THE DGIT (INV), MUMBAI WHICH SUGGESTS THAT THE ASSESSEE IS A BENEFICIARY OF ACCOMMODATION ENTRIES PROVIDED BY HAWALA OPERATOR, M/S. GLOBEX INTERNATIONAL, WHICH RESULTED IN UNDER ASSESSMENT O F INCOME. ACCORDINGLY NOTICE UNDER SECTION 148 OF THE ACT DATED 19.02.201 3 WAS ISSUED AND SERVED ON THE ASSESSEE. IN THE MEANTIME, THERE WAS A SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMI SES OF THE ASSESSEE ON 28.12.2912. DURING THE SURVEY, A STATEMENT ON OATH WAS RECORDED FROM THE DIRECTOR, SHRI LAXMIKANT KABRA, ON 19.12.2013 WHERE IN WHILE REPLYING TO QUESTION NO. 11 STATED THAT THE TRANSACTIONS WITH G LOBEX INTERNATIONAL IS NON GENUINE. THEREAFTER THE AO ISSUED NOTICE UNDER SECTION 143(2) R.W.S. 142(1) OF THE ACT. IN RESPONSE TO THE NOTICE, THE A UTHORISED REPRESENTATIVE APPEARED FROM TIME TO TIME AND FURNISHED THE DETAIL S AS CALLED FOR. THE AO, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND ALSO TAKING INTO ACCOUNT THE STATEMENT RECORDED DURING THE COURSE SU RVEY, HELD THAT ALTHOUGH THE ASSESSEE CLAIMS TO HAVE PURCHASED CAPI TAL GOODS FROM THE PARTY, BUT THE FACTS GATHERED THROUGH THE SURVEY SQ UARELY INDICATE THAT THE ASSESSEE HAS PURCHASED RAW MATERIAL. THE ASSESSEE W AS NOT ABLE TO PRODUCE ANY DOCUMENT TO PROVE THE CLAIM OF PURCHASE OF CAPI TAL ASSET AND MERE PRODUCTION OF JOURNAL ENTRY IS NOT SUFFICIENT TO PR OVE THE GENUINENESS OF PURCHASE MADE FROM THE ABOVE PARTY. ACCORDINGLY HE MADE ADDITION OF ` 45,90,435/- TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED BY THE ASSESSMENT, ORDER THE ASSESSEE PRE FERRED APPEAL BEFORE THE CIT(A). THE APPEAL FILED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY WAS TIME BARRED BY 285 DAYS. TH E ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY IN FILING THE APP EAL BEFORE THE CIT(A) AND ARGUED THAT IT HAS NOT FILED THE APPEAL IN TIME UND ER THE BONAFIDE BELIEF SUPPORTED BY A EXPERT ADVICE OF CHARTERED ACCOUNTAN T SHRI RONAK DHARMIDHARIKA THAT THE ASSESSEE HAD NO MERIT IN THE CASE. ACCORDINGLY THE ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 3 ASSESSEE HAS NOT PREFERRED APPEAL. HOWEVER, LATER O N WHEN THE MATTER FOR A.Y. 2010-11 CAME UP FOR HEARING, ANOTHER CHARTERED ACCOUNTANT, SHRI ASHWIN S. CHHAG, ADVISED TO FILE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. ACCORDINGLY THE ASSESSEE HAS FILED THIS APPEAL. THE ASSESSEE FURTHER SUBMITTED THAT THERE IS SUFFICIENT AND REAS ONABLE CAUSE FOR NOT PRESENTING THE APPEAL IN TIME WHICH IS DUE TO WRONG ADVICE GIVEN BY A PROFESSIONAL. THEREFORE, SUCH A DELAY IN FILING THE APPEAL CANNOT BE ATTRIBUTED TO DELIBERATE ATTEMPT MADE BY THE ASSESS EE NOT TO FILE THE APPEAL IN TIME. THE ASSESSEE ALSO RELIED UPON VARIOUS CASE LAW TO SUPPORT ITS CASE. 5. THE CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE AND ALSO BY RELYING UPON VARIOUS JUDICIAL PRECEDENTS IN CLUDING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF AJIT SINGH THAKUR SINGH VS. STATE OF GUJARAT AIR 1981 (SC) 733 & 735, HELD THAT THE ASSESSEE FAILED TO MAKE OUT SUFFICIENT AND REASONABLE CAUSE IN NOT FIL ING THE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE ACT AND ACCORDINGLY T HE DELAY IN FILING OF APPEAL OF 285 DAYS CANNOT BE CONDONED. WITH THIS OB SERVATION, THE LEARNED CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE CIT(A) ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING, THE LEARNED A.R. SUBMITTED THAT THERE IS A DELAY OF 2 DAYS IN FILING THE APPEAL BEFORE THE TRI BUNAL FOR WHICH THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF TH E DELAY ALONG WITH AN AFFIDAVIT AS PER WHICH THERE WAS A BONAFIDE MISTAKE IN COMPUTING THE NUMBER OF DAYS. THEREFORE THE DELAY OF 2 DAYS IS NO T INTENTIONAL AND ACCORDINGLY THE SAME MAY BE CONDONED. THE LEARNED D .R., ON THE OTHER HAND, OPPOSING THE CONDONATION OF DELAY SUBMITTED T HAT EACH AND EVERY DAY OF DELAY NEEDS TO BE EXPLAINED WITH SUFFICIENT CAUSE. SINCE THE ASSESSEE HAS FAILED TO EXPLAIN THE REASONS FOR NOT FILING TH E APPEAL WITHIN TIME, THE DELAY IN FILING THE APPEAL CANNOT BE CONDONED. 7. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATERIAL ON RECORD, WE FOUND THAT THE ASSESSEE HAS EXPLAINED THE REASONS F OR DELAY OF 2 DAYS IN FILING THE APPEAL, WHICH IS ON ACCOUNT OF BONAFIDE BELIEF THAT THE APPEAL CAN ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 4 BE FILED WITHIN 2 MONTHS FROM THE DATE OF RECEIPT O F THE ORDER. THOUGH, THE ASSESSEE HAS FILED THE APPEAL WITHIN 2 MONTHS FROM THE DATE OF RECEIPT OF THE ORDER, IF YOU GO BY NUMBER OF DAYS, IT GOES BEY OND 2 DAYS FROM THE DATE PRESCRIBED UNDER THE ACT. ACCORDINGLY, WE ARE OF TH E CONSIDERED VIEW THAT THERE IS REASONABLE CAUSE FOR NOT PRESENTING THE AP PEAL WITHIN THE TIME PRESCRIBED UNDER THE ACT AND HENCE, THE DELAY IN FI LING THE APPEAL IS CONDONED. 8. COMING BACK TO THE ISSUE ON HAND. THE LEARNED A.R. FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) WAS ERRED IN NOT CONDONING THE DELAY IN FILING THE APPEAL UNDER SECTION 246A(I)(B) OF THE A CT, ON THE GROUND THAT THE ASSESSEE DID NOT HAVE SUFFICIENT CAUSE FOR NOT PRES ENTING THE APPEAL WITHIN 30 DAYS ON RECEIPT OF THE ASSESSMENT ORDER. THE LEA RNED A.R., REFERRING TO THE PETITION FILED FOR CONDONATION OF DELAY ALONG W ITH AFFIDAVITS OF TWO CHARTERED ACCOUNTANTS, SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THE DELAY IN FILING THE APPEAL WITH THE HELP OF AFFIDAV ITS FILED BY THE CHARTERED ACCOUNTANTS AS PER WHICH SHRI RONKA DHARMIDHARIKA, WHO REPRESENTED THE ASSESSEES CASE BEFORE THE AO HAS ADVISED THE A SSESSEE NOT TO PREFER APPEAL AGAINST THE ORDER PASSED BY THE AO AS THE AS SESSEE DOES NOT HAVE STRONG CASE ON MERITS. THEREFORE, ON THE BASIS OF T HE EXPERT ADVICE THE ASSESSEE DID NOT FILE THE APPEAL. HOWEVER, ON A LAT ER DATE WHEN THE APPEAL FOR A.Y. 2010-11 CAME UP, SHRI ASHWIN S. CHHAG, CHA RTERED ACCOUNTANT, WHO ATTENDED THE PROCEEDINGS FOR A.Y. 2012-11 INFOR MED THAT THE ASSESSEE IS HAVING A PRIMA FACIE CASE IN ITS FAVOUR, THEREFO RE THE ORDER OF THE AO MAY BE CHALLENGED BEFORE THE APPELLATE AUTHORITY. ACCOR DINGLY THE ASSESSEE DECIDED TO FILE APPEAL. THEREFORE THE DELAY IN FILI NG OF APPEAL OF 285 DAYS IS NOT INTENTIONAL AND THERE IS SUFFICIENT AND REASONA BLE CAUSE FOR NOT PRESENTING THE APPEAL. THE LEARNED A.R. FURTHER SUB MITTED THAT BOTH THE PROFESSIONAL HAVE EXPLAINED THE FACTS IN THEIR AFFI DAVITS WHICH ARE SELF EXPLANATORY. THEREFORE THE DELAY IN FILING THE APPE AL CANNOT BE ATTRIBUTABLE TO NEGLIGENCE OF THE ASSESSEE. THE LEARNED A.R., RE FERRING TO VARIOUS DECISIONS OF COURTS SUBMITTED THAT IN SIMILAR CIRCU MSTANCES COURTS HAVE HELD THAT WRONG ADVICE GIVEN BY A PROFESSIONAL CONS TITUTE A SUFFICIENT AND ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 5 REASONABLE CAUSE FOR CONDONATION OF DELAY IN FILING THE APPEAL AND ACCORDINGLY THE DELAY IN FILING THE APPEAL BEFORE T HE CIT(A) MAY BE DIRECTED TO BE CONDONED. IN THIS REGARD, HE RELIED UPON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF VIJAY VISHING MEGH ANI VS. DCIT (2017) 398 ITR 250. THE ASSESSEE ALSO RELIED UPON THE FOLL OWING CASE LAW: - I. FAISAL HAMEED VS. ITO (2013) 256 CTR 429 (J & K) II. INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. ADIT (2 016) 179 TTJ 254 (MUM-TRIB) III. ACIT VS. VIREET INVESTMENT (P) LTD. (2017) 154 DTR 241 (DEL) (SB). IV. VINOD AGARWAL VS. PR. CIT (2018) 61 ITR(T) 598 (KOL -TRIB) V. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS VS. DDIT (EXEMPTIONS) (2008) 15 DTR 633 (BANG-TRIB) VI. N. BALAKRISHNAN VS. M. KRISHNAMURTHY (1998) 7 SCS 1 23 (SC) 9. THE LEARNED D.R., ON THE OTHER HAND, STRONGLY SUPP ORTING THE ORDER OF THE CIT(A) SUBMITTED THAT THE CIT(A) HAS DISCUSS ED THE CASE IN THE LIGHT OF VARIOUS JUDICIAL PRECEDENTS AND HELD THAT THE AS SESSEE FAILED TO MAKE OUT SUFFICIENT AND REASONABLE GROUND FOR CONDONATION OF DELAY IN FILING THE APPEAL AND ACCORDINGLY THERE IS NO MERIT IN THE ARG UMENTS OF THE ASSESSEE THAT IT HAS NOT FILED THE APPEAL ON THE ADVICE OF T HE CHARTERED ACCOUNTANT. THE LEARNED D.R. FURTHER SUBMITTED THAT THE ASSESSE E IS WELL AWARE OF THE FACT THAT IT DOES NOT HAVE ANY MERIT IN ITS CASE AS THE ADDITION MADE BY THE AO IS ON THE BASIS OF THE ADMISSION OF THE DIRECTOR OF THE COMPANY DURING THE SURVEY PROCEEDINGS. THEREFORE ON THE BASIS OF T HESE FACTS THE ASSESSEE HAS TAKEN A CONSCIOUS DECISION NOT TO FILE APPEAL, BUT ALL OF A SUDDEN WITHOUT THERE BEING ANY CHANGE IN THE MATERIAL FACT THE ASSESSEE HAS FILED APPEAL WITH A DELAY OF 285 DAYS WITHOUT ANY SUFFICI ENT OR REASONABLE GROUND. THEREFORE THE CIT(A) WAS RIGHT IN REJECTING THE APPEAL FILED BY THE ASSESSEE AND ORDER MAY BE UPHELD. 10. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIA L AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE LEARNED CIT(A) HAS REJECTED THE APPEAL FILED BY THE ASSESSE E ON THE GROUND THAT THERE IS A DELAY OF 285 DAYS IN FILING THE APPEAL AND THE ASSESSEE HAS NOT ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 6 EXPLAINED THE DELAY IN FILING THE APPEAL WITH SUFFI CIENT AND REASONABLE CAUSE. ACCORDING TO THE CIT(A) THE EVENTS AND CIRCUMSTANCE S ARISING AFTER LIMITATION CANNOT CONSTITUTE SUFFICIENT CAUSE. THE ASSESSEE HA S TAKEN A CONSCIOUS DECISION NOT TO FILE APPEAL ON THE BASIS OF FACTS O F ITS CASE. WHEN THERE BEING NO MATERIAL CHANGE IN FACTS, FILING OF APPEAL ON DI FFERENT GROUNDS WITH THE HELP OF AFFIDAVITS CANNOT CONSTITUTE REASONABLE CAU SE OR SUFFICIENT GROUND FOR CONDONING THE DELAY IN FILING THE APPEAL. IT IS NOT THE CASE OF THE ASSESSEE THAT IT HAS HANDED OVER ALL NECESSARY PAPERS TO THE CHARTERED ACCOUNTANT FOR PREPARATION AND FILING OF APPEAL, BUT THE PROFE SSIONAL WHO ATTENDED THE MATTER HAS NOT FILED THE APPEAL AND ADVISED THE ASS ESSEE NOT TO FILE APPEAL. THE ASSESSEE FAILED TO BRING ANY MATERIAL TO PROVE ITS BONAFIDE ATTEMPT MADE IN FILING THE APPEAL. THE ASSESSEE MERELY FURNISHED AFFIDAVITS FROM TWO CHARTERED ACCOUNTANTS AND SEEKING CONDONATION OF DE LAY IN FILING THE APPEAL. ACCORDINGLY THE LEARNED CIT(A) REJECTED THE APPEAL FILED BY THE ASSESSEE. THE RELEVANT OBSERVATION OF THE CIT(A) IS EXTRACTED BELOW: - 3.4. I HAVE CONSIDERED THE ORIGINAL APPLICATION F ILED ALONGWITH THE APPEAL MEMO IN FORM NO.35 AND ABOVE WRITTEN SUBMISS ION AND ARGUMENTS OF LD. AUTHORISED REPRESENTATIVE, CAREFUL LY. I FIND THAT THERE IS 'NO GENUINE REASON' OR 'SUFFICIENT CAUSE' OR 'REASO NABLE GROUND' FOR FILING THIS APPEAL AFTER EXPIRY OF 285 DAYS FRO M THE DAY OF LIMITATION. IT CAN BE SEEN FROM THE ADMISSION OF TH E APPELLANT AS WELL AS PRESENT LD. AUTHORISED REPRESENTATIVE THAT THERE WAS CONSCIOUS DECISION NOT TO FILE THE APPEAL OF THIS A.Y.2009-10 . WHEN THERE IS A DECISION FOR NOT FILING THE APPEAL, THERE IS NO VAL ID REASON TO BE CONSIDERED BY THIS OFFICE FOR CONDONATION OF DELAY. WHEN THERE IS AN ADVICE FROM A REPUTED CHARTERED ACCOUNTANT'S FIRM N AMELY, M/S. SHAH & KATHERIA THAT APPELLANT HAS NO MERIT FOR FIL ING APPEAL, AND ACCORDINGLY, WHEN THERE IS A DECISION OF THE APPELL ANT/DIRECTORS OF THE COMPANY, NOT TO FILE APPEAL AGAINST THE ORDER OF TH E ASSESSING OFFICER, LATER ON MERELY ON THE GROUND THAT, WHILE APPEARING FOR A.Y.2010-11 BEFORE THE APPELLATE AUTHORITY, AN ADVICE WAS GIVEN BY ANOTHER CHARTERED ACCOUNTANT THAT APPEAL OF THIS YEAR SHOUL D HAVE BEEN FILED, CANNOT BE PRESUMED TO BE ANY GROUND FOR DILUTING TH E LAW U/S.249(3) OF THE INCOME-TAX ACT, 1961. UNDER THIS SECTION, TH E FIRST APPELLATE AUTHORITY MAY ON GOOD AND SUFFICIENT REASON FOR THE DELAY SHOWN BY THE APPELLANT, ADMIT AN APPEAL AFTER THE EXPIRY OF THE PERIOD OF LIMITATION. THEREFORE, THE CAUSE FOR DELAYED APPEAL SHOULD BE 'SUFFICIENT', 'CORRECT', 'GENUINE' AND 'CONVINCING ONE'. HERE IS THE CASE WHERE THERE IS NO SUFFICIENT AND GENUINE R EASON FOR FILING APPEAL AFTER 285 DAYS THAT TOO AFTER TAKING DECISIO N FOR NOT FILING APPEAL. THE HO'BLE ALLAHABAD HIGH COURT IN THE CASE OF JAGNNATH ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 7 PRASAD KANHAIYALAL VS. CIT [1988] 171 ITR 596 (ALL. ), HAS FILED SUCH APPEAL IS TIME-BARRED, HENCE DELAY CANNOT BE CONDON ED. REFERENCE MAY ALSO BE HAD OF THE PROPOSALS PRESCRIBED IN THE CASE OF PADMAVATHI VS. KALO, AIR 1980 KERALA 173. FURTHER, IN THE CASE OF SHREEMANT GOVINDRAO N. GHORPADE VS. CIT [1963] 48 I TR 34 (BOM.). IT HAS BEEN HELD THAT WHILE DECIDING SUCH ISSUE APPELL ATE AUTHORITY HAS TO CONSIDER WHETHER, CAUSE SHOWN BY THE APPELLANT F OR DELAY IN FILING THE APPEAL IS GOOD AND SUFFICIENT OR NOT. HERE IN THIS CASE, THERE IS NO GOOD AND SUFFICIENT CAUSE FOR FILING SUCH TIME-BARR ED APPEAL. 3.5. THE CLAIM OF THE APPELLANT THAT SUBSEQUENT TO THE DECISION OF NOT FILING THE APPEAL AGAINST THE ORDER OF THE ASSESSIN G OFFICER, THERE WAS AN ADVICE BY ANOTHER CHARTERED ACCOUNTANT FOR FILIN G APPEAL IS OBVIOUSLY CANNOT CONSTITUTE 'SUFFICIENT CAUSE' FOR CONDONATION OF DELAY. IN THE CASE OF AJIT SINGH THAKUR SINGH VS. S TATE OF GUJARAT AIR 1981 (SC) 733 & 735, IT HAS BEEN HELD BY THE HON'BL E SUPREME COURT THAT NO EVENT OR CIRCUMSTANCE ARISING AFTER EXPIRY OF LIMITATION CAN CONSTITUTE A 'SUFFICIENT CAUSE'. FURTHER, IN THE CA SE OF SHREE VENKATESHA PAPER & BOARDS LTD. VS. DCIT (2006) 1998 ITD 200/CHENNAI (1999), SUCH BELATED APPEAL HAS NOT BEE N ADMITTED AS THERE WAS NO GOOD AND SUFFICIENT REASON FOR THE DEL AY IN FILING OF THE APPEAL. AS REGARDS DILIGENCE, TRUE GUIDE IS THAT WH ETHER THE APPELLANT HAD ACTED WITH REASONABLE DILIGENCE IN THE PROSECUT ION OF APPEAL.. HERE IS NOT THE CASE LIKE THAT, HENCE, DELAY CANNOT BE CONDONED VIDE BRIJLNDER SINGH VS. KANSHI RAM AIR 1917 (PC) 156 & ASIBAI VS. GOMATHI, AIR 1979 (MADRAS) 115, 116. AS REGARDS VARIOUS CASE LAWS, REFERRED TO BY LD. AU THORISED REPRESENTATIVE, IT IS PERTINENT TO MENTION THAT NON E OF THE CASE LAWS IS APPLICABLE TO THE PECULIAR FACTS OF THE APPELLANT. THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI (1987) 167 ITR 471 (SC) IS NOT APPLICABLE TO THE FACTS OF THE CASE. IN THAT CASE, ESTATE WAS THE APPLICANT PRAYING FOR CONDONATION OF DELAY WHICH WA S IN PUBLIC INTEREST. AFTER THAT DECISION, IN THE CASE OF MUNIC IPAL CORPORATION, AHMEDABAD VS. VOLTAS LTD; AIR 1995 GUJARAT 29, 43 F ULL BENCH HAS CLARIFIED THAT 'SUFFICIENT CAUSE' IS A QUESTION OF FACT, HENCE, WHETHER TO CONDONE THE DELAY OR NOT, DEPENDS UPON THE FACTS AN D CIRCUMSTANCES OF EACH CASE. THEREFORE, UNLESS GENUINE, CORRECT AN D SUFFICIENT CAUSE IS DEMONSTRATED, SUCH TIME-BARRED APPEAL CANNOT BE ADMITTED. 3.6 THE APPELLANT HAS TO SHOW SUFFICIENT CAUSE FOR NOT FILING THE APPEAL ON THE LAST DAY OF LIMITATION AND MUST EXPLA IN THE DELAY MADE THEREAFTER, DAY BY DAY, TILL THE ACTUAL DATE OF FIL ING OF THE APPEAL. IN OTHER WORDS, THE WHOLE OF THE DELAY MUST BE EXPLAIN ED SEE RAMLAL V. REWA COALFIELDS LTD; AIR 1962 SC 361, 364; SITARAM RAMCHARAN V. M.N. NAGARSHANA, (1960) 1 SCR 875, 889 + AIR 1960 S C 260, 265- 66; J.B. ADVANI & CO. PRO LTD. V. R.D. SHAH, CIT (1 969) 72 ITR 395 (SC); SANDHYA RANI SARKAR V. SUDHA RANI DEBI, AIR 1 978 SC 537, 542; SOORAJMULL NAGARMAL V. GOLDEN FIBRE & PRODUCTS , AIR 1969 CA1.381, 384; BHAKTIPADA MAJHI V. SDO, AIR 1971 CAL .204]. SUFFICIENT CAUSE HAS TO BE SHOWN IN RESPECT OF FALL ING WITHIN THE ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 8 PRESCRIBED STATUTORY PERIOD [SEE BALIRAM PRASAD V. UNION OF INDIA, (1997) 2 SCC 292, 294. 3.7. THUS, IN THE LIGHT OF ABOVE DISCUSSION & VARIO US REFERENCES OF PROPOSITIONS OF HIGH COURTS AND SUPREME COURT, I AM OF THE CONSIDERED OPINION THAT APPELLANT HAS NOT EXPLAINED DAY TO DAY REASON OF DELAY, HAS NOT DEMONSTRATED THE SUFFICIEN T CAUSE OR ANY GENUINE REASON FOR NOT FILING APPEAL ON TIME, HENCE , SUCH APPEAL FILED AFTER EXPIRY OF 285 DAYS CANNOT BE ADMITTED, THEREF ORE, APPEAL SO FILED ON 06.08.2014 AGAINST THE ORDER OF THE ASSESSING OF FICER DATED 20.11.2013, IS NOT ADMITTED. 11. FACTS REMAIN UNCHANGED. THE ASSESSEE FAILED TO BRI NG ANY EVIDENCE TO PROVE THAT THERE IS CHANGE IN FACTS EXISTED AT T HE TIME OF FILING THE APPEAL BEFORE THE CIT(A) AND THE FACTS EXISTED AT THE TIME OF ASSESSMENT PROCEEDINGS. THE ASSESSEE IS WELL AWARE OF THE FACT OF ITS CASE AND ACCORDINGLY TAKEN A CONSCIOUS DECISION NOT TO FILE APPEAL AGAINST THE ADDITION MADE BY THE AO ON THE BASIS OF INFORMATION RECEIVED FROM DGIT (INV) WHICH SUGGESTS OBTAINING BOGUS PURCHASE BILLS FROM HAWALA OPERATORS AND THIS FACT WAS FURTHER SUPPORTED BY THE STATEMEN T RECORDED FROM THE DIRECTOR OF THE COMPANY DURING THE COURSE OF SURVEY PROCEEDINGS. WHEN THE ASSESSEE HAS TAKEN A CONSCIOUS DECISION NOT TO FILE APPEAL AGAINST THE ORDER PASSED BY THE AO, THERE IS NO VALID REASON TO BE CONSIDERED BY THE LEARNED CIT(A) TO CONDONE THE DELAY IN FILING THE A PPEAL MERELY ON THE BASIS OF SELF SERVING DOCUMENTS FILED BY THE ASSESSEE, I. E. AFFIDAVITS OF TWO PROFESSIONALS. NO DOUBT, THE APPELLATE AUTHORITY HA VE INHERENT POWER TO CONDONE THE DELAY IN FILING THE APPEAL, PROVIDED TH E ASSESSEE WHO FILED THE APPEAL MAKES OUT A CASE OF SUFFICIENT AND REASONABL E GROUND FOR NOT FILING THE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE ACT . THE COURTS HAVE HELD THAT IF THE ASSESSEE EXPLAINS THE REASONS FOR DELAY IN FILING THE APPEAL, THEN MERELY FOR THE TECHNICAL REASONS THE APPEAL FILED B Y THE ASSESSEE CANNOT BE REJECTED. AT THE SAME TIME, THE COURTS HAVE REITERA TED THAT EACH AND EVERY DAY OF DELAY MUST BE EXPLAINED WITH REASONS. THEREF ORE FROM THE ABOVE IT IS VERY CLEAR THAT IT IS FOR THE ASSESSEE TO EXPLAIN T HE REASONS FOR DELAY IN FILING THE APPEAL WITH SUFFICIENT AND REASONABLE CA USE. IN THIS CASE, ON PERUSAL OF DETAILS FILED BY THE ASSESSEE, WE FOUND THAT THERE IS NO CHANGE IN THE FACTS EXISTED AT THE TIME OF ASSESSMENT PROCEED INGS AND AT THE TIME OF ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 9 FILING APPEAL BEFORE THE CIT(A). THE ONLY CHANGE IN FACTS IS THAT THERE ARE DIVERGENT STATEMENTS BY WAY OF AFFIDAVITS FROM TWO CHARTERED ACCOUNTANTS, ONE IN FAVOUR OF THE ASSESSEE AND ONE IS AGAINST TH E ASSESSEE. EXCEPT THIS THE ASSESSEE HAS NOT BROUGHT OUT ANY RECORDS TO PRO VE ITS BONAFIDE ATTEMPTS MADE IN FILING APPEAL AGAINST THE ORDER PA SSED BY THE AO. HAD IT BEEN THE CASE OF THE ASSESSEE THAT IT HAS HANDED OV ER ALL PAPERS TO THE PROFESSIONAL FOR FILING THE APPEAL, BUT THE PROFESS IONAL WHO HAD ADVISED THE ASSESSEE TO NOT TO FILE THE APPEAL. IN THE ABSENCE OF ANY EVIDENCE TO PROVE BONAFIDENESS OF THE ASSESSEE, MERELY ON THE BASIS O F SELF SERVING DOCUMENTS, HUGE DELAY IN FILING APPEAL CANNOT BE CO NDONED. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS FA ILED TO MAKE OUT SUFFICIENT AND REASONABLE CAUSE FOR CONDONATION OF DELAY IN FILING THE APPEAL FILED BEFORE THE CIT(A). ALTHOUGH, THE ASSES SEE HAS RELIED UPON VARIOUS DECISION IN SUPPORT OF ITS ARGUMENTS, THE F ACTS REMAIN THAT THE TERM SUFFICIENT CAUSE IS NOT EXPLAINED AND HENCE WHETHER TO CONDONE THE DELAY OR NOT IS PURELY DEPENDS UPON THE FACTS AND C IRCUMSTANCE OF EACH CASE. THEREFORE ALL THE CASE LAW RELIED UPON BY THE ASSESSEE ARE CONSIDERED TO BE NOT APPLICABLE TO THE ASSESSEES CASE AND ACC ORDINGLY NOT CONSIDERED. 12. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDER ED VIEW THAT THE ASSESSEE HAS FAILED TO MAKE OUT SUFFICIENT AND REAS ONABLE CASE BEFORE THE CIT(A) FOR CONDONATION OF DELAY IN FILING OF THE AP PEAL BY 285 DAYS. THEREFORE THE CIT(A) WAS RIGHT IN REJECTING THE APP EAL FILED BY THE ASSESSEE. WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE ORDER PASSED BY THE CIT(A). HENCE WE ARE INCLINED TO UPHELD THE FINDINGS OF THE CIT(A). 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER, 2018. SD/ - SD/ - (RAM LAL NEGI) (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 5 TH OCTOBER, 2018 ITA NO. 955/MUM/2016 M/S. ASTEC LIFESCIENCES LTD. 10 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -4, MUMBAI 4. PR. CIT-2, MUMBAI 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.