ALL INDIA GEMS & JEWELLERY TRADE FEDERATION, MUMBAI V. ADIT (E) II(2), MUMBAI

MA 53/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5299 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 22-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: FIRO ANDHUYARUJNA
• Keywords: Rectification of order; Charitable institution; Earning of tax free income; Question of law; Condonation of delay; Set aside
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAVAN KUMAR GADALE, JM M. A . N os . 5 3 & 54 / Mu m / 20 2 1 ( A r is in g ou t o f IT A N o s . 5 5 3 2/ Mu m/ 2 0 15 an d 27 1/ Mu m /2 0 1 6) ( As s e s s me nt Y ea rs : 20 11 - 1 2 & 20 1 2 - 1 3) All India Gems & Jewellery Trade Federation Plot No. A-56, 5 th Floor P&S Corporate Park, Road No.1 Behind Tunga Intentional, MIDC Andheri(E), Mumbai-400 093 Vs . ADIT(E)-II(2) R.No.507, 5 th Floor Piramal Chambers, Parel Mumbai-400 012 PA N / GI R N o . AAF CA 3 0 01 P (Appellant) : (Respondent) Appellant by : Shri Firo Andhuyarujna Respondent by : Shri C.T.Mathew D at e o f H e a ri n g : 10.12.2021 Da t e o f P r o no un c e me nt : 25 .01.2022 Per Shamim Yahya, A. M.: These are miscellaneous applications filed by the assessee against respective orders of the ITAT in ITA Nos. 5532/ M u m / 20 1 5 an d 27 1/ Mu m /2 0 16 v id e or de r s dated 11.01.2017 & 31.01.2018 for concerned assessment years. 2. Since the issues are common and appeals were heard together, these are consolidated for the sake of convenience. M.A.No.53/Mum/2021 for AY 2011-12 3. At the outset, we note that thsere is a delay of three years and six months in filing the appeal. The assessee has filed an application for rectification of mistake u/s. 254(2) of the I.T.Act. After making the averments in the miscellaneous application on the basis of facts 2 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n narrated in the miscellaneous application, assesse seeks condonation of delay in filing the rectification application, which is admitted at three years and six months. 4. The said miscellaneous application reads as under:- Miscellaneous application to rectify mistake apparent on record in order dated 11/01/2017, passed u/s 254 of the Income Tax Act. MAY IT PLEASE YOUR HONOUR: The present Miscellaneous Application is filed against the order of this Hon’ble tribunal T Bench pronounced on 11 January 2017 by which order the appeal filed by the appellant was restored to the file of the AO for fresh consideration of the matter. The appellant submits that the order of the Hon'ble tribunal, restoring the matter to the file of the AO for deciding the matter afresh, suffers from patent and apparent mistake on record which vitiates the order in as much as the tribunal having recorded the argument of the Council on page 2 of its order and recording the decision of the Bombay Presidency Golf club Ltd which squarely covers the issue, did not give any finding conclusion or observation on the said case. It is submitted that the decision in the case of Bombay Presidency Golf club squarely covers the issue. Case of the assessee is on identical point and facts and subsequently on 2 nd April 2019 even the Hon'ble Bombay High Court has approved the said decision of the Tribunal and held that no question of law arises and thus the decision of the tribunal in Bombay Presidency Golf Club has reached finality. Thus, non-consideration of a decision which is identical on facts and in law constitute mistake apparent on record, Issue before the tribunal was interest on fixed deposits with banks would be exempt income based on principle of mutuality. The tribunal recorded the observation in the following terms. "The assessee claims for following the mandate of clause (iii) of sub-section 5 of section 1 1 of the Income Tax Act for depositing the amount of assessee in Schedule Bank. The learned AR of the assessee further argued that the interest income is not taxable income under the head of 'profit and gains of business or profession'. The learned AR of the assessee further relied upon the decision of the Mumbai tribunal in the case of Bombay Presidency Golf club versus ITO (E) 2016 69 taxmann.com 208". It may be noted that having recorded the argument and the decision of the Mumbai tribunal in the case of Bombay Presidency Golf Club (supra) the tribunal did not record any finding or any observation on the said decision, which is a mistake apparent on record. It is submitted that The Hon'ble Tribunal having recorded -the argument and decision of Jurisdictional tribunal did not give any finding observation or conclusion constitutes a mistake apparent on record more particularly subsequent 3 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n events manifest that the same decision of the tribunal was confirmed and approved by the Hon'ble Bombay High Court on 2 nd April 2019. That non-recording of the observation or the findings of the tribunal on a particular decision which is the only issue is a mistake apparent on record. It is submitted that the tribunal ought to have commented or made observation on the decision of the tribunal quoted above. The tribunal having not come to any finding or conclusion on the decision of the tribunal quoted above constitutes a mistake apparent on the record more particularly when it is the contention of the assessee that the said decision is squarely applicable to the facts of the present case. The tribunal has correctly recorded the main issue on page 2 ".... As to why the interest received on fixed deposit should not be considered as taxable , income of the assessee". It may be noted that the jurisdictional tribunal in the case of Bombay Presidency Golf Club laid down the proposition, the act of deposit of money in schedule banks complying with specific provisions of section 11(5) and receipt of interest thereon is not an activity in the nature of trade, commerce or business. The issue was also recorded that the AO had opined that interest income so received from the bank that is non-members was taxable and the principle of mutuality could not be applied to such earnings as assessee was not an entity set for charitable purposes. Thus, the entire issue as decided in the case of Bombay Presidency Golf Club was identical to the facts of the present case on which the tribunal did not give any finding observation or conclusion whatsoever. The decision of the Hon'ble tribunal in the case of All India Gem & Jewellery Domestic Council (previously known as All India Gems & Jewellery Trade Federation), "assessee", was pronounced on 11/01/2017 and was received by the assessee on 17 February 2017. The tribunal by impugned order dated 11 th January 2017 on page 5 restored the appeal to the file of AO to examine all the facts if the case of the assessee would fall within the ambit of mutuality and pass appropriate order in accordance with law. The Hon'ble Bombay High Court by its order dated 2 nd April 2019 in Income tax Appeal No. 235 of 2017 filed by the Department against the decision of the tribunal in the case of the Bombay Presidency Golf Club decided the issue in favour of the assessee. The Bombay High Court in para 5 of the order the court has clearly applied the provisions of section 11. It may further be noted that the tribunal has categorically recorded that "In the present case, as recorded by the tribunal, the assessee had invested the surplus funds in .. specified deposits earning interest which reduce the assessee's loss. In terms of subsection 1 of section 11 of the Act, therefore, such income was exempt from tax. The tribunal, therefore correctly granted relief to assessee. No question of law arises." The High Court further observed in para 6 that ".... we may record that we have not based reasoning of the principal of mutuality.....". Thus, based on the legal 4 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n interpretation of section 11 (l)(a) and (5). The Hon'ble High Court did not go into the question of mutuality which was not relevant looking into the interpretation of the section. The said judgement was delivered on 2 nd April 2019. The impugned order dated 11 th January 2017 was received by the assessee on 17 February 2017. As the matter was restored to the file of AO, the assessee did not follow up on the matter. It has now come to notice of the assessee that the decision of the tribunal in the case of Bombay Presidency Golf Club was decided by Hon'ble Bombay High Court in favour of the assessee laying the proposition that the deposit in schedule bank is only a compliance with specific provision of 11(5) and receipt of interest is not an activity in the nature of trade or business and the question of mutuality does not arise or apply at all. It is further informed that the decision of the Bombay High Court in IT appeal No. 235 of 2017 dated 2 nd April 2019 was published in June 2019. That a rectification application ought to have been filed by August 2017. However, as the issue was now settled by the Hon'ble Bombay High Court on identical issue in April 2019 which was published in June 2019, the Appellant was not aware of the same and was brought to its notice only recently. By end of January 2021 steps could be taken to file the required rectification application hence there is a delay in filing of the rectification application. Thus, there is a delay of 3 years and 6 months in filing the present miscellaneous application^ It is settled law that once a judgement is delivered by the Hon'ble Supreme Court or by the High Court that law is deemed to have reached finality. In the present case the Department has not preferred any further appeal against the decision of the Hon'ble Bombay High Court in the case of the Bombay Presidency Golf club Ltd, thus the decision has reached finality only on 2 nd April 2019. As the assessee was not aware of the said judgement which was published in June 2019 and came to know about it recently, thereafter it took steps for filing the present rectification application hence the delay be condoned. Application for condonation of delay along with the impugned order dated 11/01/2017 and decision of the Bombay Presidency Golf Club of the Hon'ble Mumbai tribunal and of the Hon'ble Bombay High Court in IT appeal No. 235 of 20 17 dated 2 nd April 2019 are also attached along with the present application. The Requisites court fee along with the application is paid. PRAYERS 1) The present rectification application be entertained. 2) The Hon'ble tribunal be pleased to pass order in terms of the decision of the Bombay Presidency Golf Club as decided by the Hon'ble Bombay High Court. 3) To rectify its order dated 11.01.2017 and pass a speaking order in terms of the decision of the tribunal and the Hon'ble Bombay High Court in terms of the decision of the Bombay Presidency Golf Club which was digested by the tribunal but not commented or given any observation thereon. 4) Any other order or reliefs as may be deemed fit. 5 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n 5. The assessee has also filed separate condonation of petition, the chart of events mentioned in the same is as under:- Sr. No. Particulars Date 1 Impugned ITAT order 31/01/2018 2 Order received on 13/04/2018 3 Bombay High Court confirming tribunals order of Bombay Presidency Golf Club 02/04/2019 4 Order reported on date June 20 19 5 Filed misc. /rect. application February 2021 DELAY 6 From ITAT order till filing of MA 2 years 4 months From judgement (Bombay Presidency Golf Club) of High Court till MA filed 1 year 9 months M.A.No.54/Mum/2021 for AY 2012-13:- 6. In this appeal also, there is a delay of two years and four months in filing the miscellaneous application, the reasons for the same have been mentioned by the asssessee in a miscellaneous application itself at the end of the averments. 7. The said miscellaneouss application reads as under:- 6 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n Miscellaneous application to rectify mistake apparent on record in order dated 31/01/2018, passed u/s 254 of the Income Tax Act. MAY IT PLEASE YOUR HONOUR: The present Miscellaneous Application is filed against the order of this Hon’ble tribunal A Bench pronounced on 31 January 2018 by which order the appeal filed by the appellant was restored to the file of the AO for fresh consideration of the matter. The appellant submits that the order of the Hon'ble tribunal, restoring the matter to the file of the AO for deciding the matter afresh, suffers from patent and apparent mistake on record which vitiates the order in as much as the tribunal having recorded the argument of the Council on page 3 of its order and recording the decision of the Bombay Presidency Golf club Ltd which squarely covers the issue, did not give any finding conclusion or observation on the said case. It is submitted that the decision in the case of Bombay Presidency Golf club squarely covers the issue. Case of the assessee is on identical point and facts and subsequently on 2 nd April 2019 even the Hon'ble Bombay High Court has approved the said decision of the Tribunal and held that no question of law arises and thus the decision of the tribunal in Bombay Presidency Golf Club has reached finality. Thus, non-consideration of a decision which is identical on facts and in law constitute mistake apparent on record. Issue before the tribunal was interest on fixed deposits with banks would be exempt income based on principle of mutuality. The tribunal recorded the observation in the following terms. At pg 4 para 6 at the end the tribunal observes "..... the income has been found to be exempt on principles of mutuality excepting the incomes earned on interest on fixed deposits with banks and from income tax refund as the same are derived from non-members". The tribunal in its order dated 31 st January 2018 at pg. 3 para 4 recorded ".... also relied upon the decision of the Mumbai bench of the tribunal in the case of Bombay Presidency Golf Club Ltd vs. ITO (E) 2016 159 ITD 1050(Mumbai -Trib) to point out the act of depositing money in a scheduled bank was not an activity in the nature of trade, commerce or business so as to constitute non - charitable activity and that such income was also eligible for being considered as a charitable activity". It may be noted that having recorded the argument and the decision of the Mumbai tribunal in the case of Bombay Presidency Golf Club (supra) the tribunal did not record any finding or any observation on the said decision, which is a mistake apparent on record. It is submitted The Hon'ble Tribunal having recorded the argument and decision of Jurisdictional tribunal did not give any finding observation,or conclusion constitutes a mistake apparent or record more particularly subsequent events manifest that the same decision of the tribunal was confirmed and approved by the Hon 'ble Bombay High Court on 2 nd April 2019. 7 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n That non-recording of the observation or the findings of the tribunal on a particular decision which is the only issue is a mistake apparent on record. It is submitted that the tribunal ought to have commented or made observation on the decision of the tribunal quoted above. The tribunal having not come to any finding or conclusion on the decision of the tribunal quoted above constitutes a mistake apparent on the record more particularly when it is the contention of the assessee that the said decision is squarely applicable to the facts of the present case. The tribunal has correctly recorded the main issue on page 3. However, refrained from going in to the detail as stated at pg 5 " The entire assessment by AO and the adjudication by CITfA) in this year is based on their respective stands for AY 201 1- 2012 which had come up before the tribunal in its order dated 11/01/2017 (Supra) since the matter has been sent back by the tribunal to the AO in the earlier years, we refrain from dealing with the dispute in details". It may be noted that the jurisdictional tribunal in the case of Bombay Presidency Golf Club laid down the proposition that the act of deposit of money in schedule banks complying with specific provisions of section 1 1(5) and receipt of interest thereon is not an activity in the nature of trade, commerce or business. The "issue was also recorded that the AO had opined that interest income so received from the bank that is not from members was taxable and the principle of mutuality could not be applied to such earnings as assessee was not an entity set for charitable purposes. Thus, the entire issue as decided in the case of Bombay Presidency Golf Club was identical to the facts of the present case on which the tribunal did not give any finding observation or conclusion whatsoever. The decision of the Hon'ble tribunal in the case of All India Gem & Jewellery Domestic Council (previously known as All India Gems 85 Jewellery Trade Federation), "assessee", was pronounced on 31/01/2018 and was received by the assessee on 13/4/18. The tribunal by impugned order dated 31 January 2018 on page 5 remanded the matter back to the file of AO for a de novo assessment. However not at all dealing with the decision of the Bombay Presidency Clubs's case "Supra" which is now confirmed by the Bombay High Court on 2 nd April 2018. Thus, non-consideration of the judgment and subsequent approval by jurisdictional High Court lays down the precedent of law which ought to be followed and hence there is a mistake apparent on record for which rectification application is filed. The Hon'ble Bombay High Court by its order dated 2 April 2019 in income tax appeal No. 235 of 2017 filed by the Department against the decision of the tribunal in the case of the Bombay Presidency Golf Club decided the issue in favour of the assessee. The Bombay High Court in para 5 of the order, court has clearly applied the provisions of section 11 subsection 5 clause (a). It may further be noted that the tribunal has categorically recorded that "In the present case, as recorded by the tribunal the assessee had invested the surplus funds in specified deposits earning interest which reduce the assessee's loss. In terms of^subsection 1 of section 11 of the Act, therefore, such income was exempt from tax. The tribunal, therefore correctly granted relief to assessee. No question of law arises". 8 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n The High Court further observed in para 6 that ".... we may record that we have not based reasoning of the principal of mutuality.....". Thus, based on the legal interpretation of section 11 (l)(a) and (5). The Hon'ble High Court did not go into the question of mutuality which was not relevant looking into the interpretation of the section. The said judgement was delivered on 2 April 2019. The impugned order dated 31 January 2018 was received by the assessee on 13th April 2018. As the matter was restored to the file of AO, the assessee did not follow up on the matter. It has now come to notice of the assessee that the decision of the tribunal in the case of Bombay Presidency Golf club Ltd was decided by Hon'ble Bombay High Court in favour of the assessee laying the proposition that the deposit in schedule bank is only a compliance with specific provision of 11 (5) and receipt of interest is not an activity in the nature of trade or business and the question of mutuality does not arise or apply at all. It is further informed that the decision of the Bombay High Court in IT appeal No. 235 of 2017 dated 2 April 2019 was published in June 2019, the Appellant was not aware of the same and was brought to its notice only recently. The time limit for filing MA would be 6 months from the date of the receipt of the / order that is 13/04/2018 till 13/10/2018. Thus, there is a delay of 2 years and 4 months in filing the appeal. That a rectification application ought to have been filed by October 2018. However, as the issue was now settled by the Hon'ble Bombay High Court on identical issue in April 2019, was published in June 2019, the Appellant was not aware of the same and was brought to its notice only recently. Hence there is a delay in filing of the rectification application. Thus, there is a delay of 2 years and 4 months in filing the present miscellaneous application. It is settled law that once a judgement is delivered by the Hon'ble Supreme Court or by the High Court that law is deemed to have reached finality. In the present case the Department has not preferred any further appeal against the decision of the Hon'ble Bombay High Court in the case of the Bombay Presidency Golf Club Ltd, thus the decision has reached finality only on 2 April 2019. Application for condonation of delay along with the impugned order dated 31/01/2018 and decision of the Bombay Presidency Golf Club of the Hon'ble Mumbai tribunal and of the Hon'ble Bombay High Court in IT appeal No. 235 of 2017 dated 2 April 2019 are also attached along with the present application. The requisites court fee along with the application is paid. PRAYERS 1) The present rectification application the entertained. 2) The Hon'ble tribunal be pleased to pass order in terms of the decision of the Bombay Presidency Golf Club as decided by the Hon'ble Bombay High Court. 9 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n 3) To rectify its order dated 31/01/2018 and pass a speaking order in terms of the decision of the tribunal and the Hon'ble Bombay High Court in terms of the decision of the Bombay Presidency Golf Club which was digested by the tribunal but not commented or given any observation thereon. . 4) Any other order or reliefs as may be deemed fit. 8. In a separate petition for condonation of the delay, assessee has also mentioned a chart of events as under:- Sr. No. Particulars Date 1 Impugned ITAT order 31/01/2018 2 Order received on 13/04/2018 3 Bombay High Court confirming tribunals order of Bombay Presidency Golf Club 02/04/2019 4 Order reported on date June 20 19 5 Filed misc. /rect. application February 2021 DELAY 6 From ITAT order till filing of MA 2 years 4 months From judgement (Bombay Presidency Golf Club) of High Court till MA filed 1 year 9 months 9. On the basis of the facts narrated above, it is the plea of the assessee, that the delay be condoned. In this regard following case laws have been referred. 1. Collector, Land Acquisition and another versus Katiji and others 1987 62 CTR Supreme Court 23 10 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n 2. Esha Bhattacharjee versus Managing committee of Raghnathpur Nafar Academy 2013 CTC 547 3. Vedabai vs Shantaram Patil TS 5051-SC-2001-O- 4. Karanchand Premchand Private Limited versus CIT, 1976, 101 ITR 46 Gujarat 5. State of Andhra Pradesh vs. Venkata Ramana (1986) 159 ITR 59AP 6. CIT vs. Sothia Mining & Mfg 1990 186 ITR 182 (Cal.) 7. Kvaerner Boving construction Ltd. vs. DCIT, 1996 54 TTJ 429 (Del Tribunal)- 10. Further after referring the above, assessee has submitted as under:- It was therefore only after the decision of the Hon'ble Bombay High Court that the assessee had reason to move the appeals to the Commissioner (A) with a view to obtain relief in accordance with the ratio decidendi rendered by the Hon'ble Bombay High Court. The fact that the petitioner did not keep the question alive by preferring an appeal in time, was on account of the situation that before the Hon'ble Bombay High Court took a different view in the case of Chowgle & Company, the legal position was practically settled in this regard. If the assessee did not keep the question alive by filing appeal in time, it was obviously because the real legal position appeared to be settled not only to the assessing officer but also to the assessee and that therefore there was no point in pursuing the question any further. Hence for the purpose of deciding as to whether the assessee had sufficient cause for not preferring the appeal within time, the fact that it did not keep the question alive by preferring an appeal before the expiry of the limitation period, which was likely to prove infructuous did not make any difference. 11. We have heard both the parties and perused the records. 12. We note that there is an inordinate delay in fling these rectification applications/miscellaneous applications. Moreover, the reason for delay has been attributable to subsequent judgment delivered by Hon’ble Bombay High court claiming it to be on the same subject, which is in favour of the assessee. It is also not the case that after the said Hon’ble Bombay High Court decision the MA was soon filed. As noted above, assessee itself had admits that there was a delay of one year nine months in filing the MA, after the judgment for which the explanation is that assessee was not aware of the judgment. Furthermore, it is also noted that assessee itself admits that before this Hon’ble Bombay High Court decision in favour of assessee, there was a decision of 11 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n Hon’ble Bombay High Court in the case of Chowgule and Company Pvt.Ltd. in which Hon’ble Bombay High Court had taken a different view, which was against the assessee and the real legal matter appeared to be settled. 13. Now, the question arises if at all the inordinate delay in this case can be condoned. Firstly, we note that it is admitted by the assessee itself this decision of Hon’ble Bombay High Court was delivered much after the decision of ITAT in assessees case. That in the intervening period there was already a decision of Hon’ble Bombay High Court on the same subject which was against the view now taken by Hon’ble Bombay High Court claimed to be in favor of the assessee. In that case whether this inordinate delay can be condoned. In our considered opinion, the explanation for one year nine months delay that assessee was not aware of the Hon’ble Bombay High Court decision, which was also delivered much after the ITAT judgment is no explanation at all, much less a reasonable explanation on the facts narrated above. 14. The case laws referred by the assessee, nowhere expound that the delay such as the one in the present case was condoned in these cases. Rather on the facts of the cases, we are of the opinion that the decision of third member in the case of Tractors and Farm Equipments Ltd., 104 ITD 149 (Chennai Tribunal) is more relevant, wherein it was held that delay could not be condoned as same was due to negligence and inaction on part of assesse and assessee could have very well avoided the delay by the exercise of due care and attention. We may refer to the following observation therein. 4. The learned Counsel for the assessee vehemently relied on the decision of the Apex Court rendered in the case of Mst. Katiji (supra), wherein it was held that when substantial justice and technical considerations 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 because of a non-deliberate delay. In this case an appeal preferred by the State of Jammu & Kashmir arising out of a decision enhancing compensation in respect of acquisition of lands for a public purpose to the extent of nearly 14 lakhs rupees by making an upward revision of the order of 800 per 12 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n cent which also raised important questions as regards principles of valuation was dismissed as time barred being 4 days beyond time by rejecting an application for condonation of delay. Hence the Collector of Land Acquisition filed appeal by special leave before the Apex Court. The Hon'ble Supreme Court held that there is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve litigant non-grata status. The courts, therefore, have to be informed of the spirit and philosophy of the provision in the course of the interpretation of the expression 'sufficient cause'. So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which settles a decision on merits. On facts it was found that there existed sufficient cause for the delay. Therefore, the order of the High Court dismissing the appeal before it as time barred was set aside and the delay of 4 days was condoned. 5. In the case of Sreenivas Charitable Trust (supra) the assessee was a charitable trust. The copy of the order served on the assessee was misplaced and thereafter it was found and sent to the counsel for preparing the appeal and then the appeal was prepared and filed before the Tribunal and in that process the delay of 38 days occurred. The delay of 38 days was condoned by the Apex Court in view of the decision of the Apex Court rendered in the case of Vedabai alias Vaijayanatbai Baburao Patil (supra). In this case it was held that in exercising discretion under Section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must 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 be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise the discretion on the facts of each case keeping in mind that in considering the expression 'sufficient cause', the principle of advancing substantial justice is of prime importance. 6. It is pertinent to note that in the case of Mst. Katiji(supra) the delay was only four days. In the case of Vedabai alias Vaijayanatabai Baburao Patil (supra) there was a delay of seven days in filing the appeal. In this case the Apex Court clearly laid down that a distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. The law assists those who are vigilant, not those who sleep over their rights. This principle is embodied in the dictum: vigilantibus non dormientibus jura subveniunt. 7. The delay cannot be condoned simply because the appellant's case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the 13 A l l I n d i a g e m s & J e w e l l e r y T r a d e F e d e r a t i o n indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. has held that the cause for the delay in filing the appeal which by due care and attention could have been avoided cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, nor inaction, or want of bona fides can be imputed to the appellant a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. 8. In the present case I find that the assessee justified the delay only with reference to the affidavit of Shri M.L.S. Rao, Director of the company. In the said affidavit Mr. Rao stated that the Commissioner (Appeals)'s order was misplaced and forgotten. It was found while sorting out the unwanted papers. Thereafter steps were taken for the preparation of the appeal. Consequently the delay was caused. This clearly shows that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the delay by the exercise of due care and attention. In my opinion there exists no sufficient and good reason for the delay of 310 days. 15. In the background of aforesaid discussion and precedent, these miscellaneous applications by the assesse are dismissed as time barred. Order pronounced in the open court on 25 .01.2022 Sd/- Sd/- (Pavan Kumar Gadale) (Shamim Yahya) Judicial Member Accountant Member Mumbai; Dated : 25.01.2022 Thirumalesh , Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai