CENZER INDUSTRIES LTD, v. ITO 5(1)(3),

ITA 4227/MUM/2013 | 2007-2008
Pronouncement Date: 28-11-2014 | Result: Dismissed

Appeal Details

RSA Number 422719914 RSA 2013
Assessee PAN AABCC4342F
Bench Mumbai
Appeal Number ITA 4227/MUM/2013
Duration Of Justice 1 year(s) 6 month(s) 4 day(s)
Appellant CENZER INDUSTRIES LTD,
Respondent ITO 5(1)(3),
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 28-11-2014
Assessment Year 2007-2008
Appeal Filed On 24-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI SANJAY ARORA ACCOUNTANT MEMBER ITA NO. 4227/MUM/2013 (AY:2007-08) CENZER INDUSTRIES LIMITED OVAL HOUSE 2 ND FLOOR 63 BRITISH HOTEL LANE OFF NAGINDAS MASTER RD. FORT MUMBAI-400 001. PA NO.AABCC 4342 F ! ! ! ! / VS. ITO 5(1)(3) MUMBAI . ( #$ / // / APPELLANT) ( %&#$ / RESPONDENT) #$ ' ( ' ( ' ( ' ( /APPELLANT BY : SHRI PARESH M. SHAH %&#$ ' ( ' ( ' ( ' ( /RESPONDENT BY : SHRI RAJESH RANJAN PRASAD ! ' )* / / / / DATE OF HEARING : 27/11/2014 + - ' )* / DATE OF PRONOUNCEMENT : 28/11/2014 . . . . / / / / O R D E R PER JOGINDER SINGH (JM) : THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 2/2/2012 OF THE LD. FIRST APPELLATE AUTHORIT Y MUMBAI ON THE GROUNDS AS STATED IN THE GROUNDS OF APPEAL. BRO ADLY FRAMING ITA NO.4227 /MUM/2013 2 ASSESSMENT WITHOUT SERVING OF NOTICE U/S. 143(2) OF THE ACT WITHOUT APPRECIATING THE PROVISIONS OF SECTION 292B B AND FURTHER MAKING DISALLOWANCE U/S. 80IC OF THE ACT. 2. THERE IS A DELAY OF 373 DAYS IN FILING THE APPEA L BEFORE THIS TRIBUNAL BY THE ASSESSEE FOR WHICH APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED THEREFORE WE TEND TO DISPOSE OF THE APPLICATION FIRST. DURING HEARING THE LD. CO UNSEL FOR THE ASSESSEE SHRI PARESH M. SHAH INVITED OUR ATTENTION TO THE CONTENTS OF THE APPLICATION SUPPORTED BY AFFIDAVIT AND ALSO THE PAPER BOOK OF THE ASSESSEE RUNNING INTO 178 PAGES. THE CRUX OF ARGUMENT ADVANCED ON BEHALF OF THE ASSESSEE IS IDEN TICAL TO THE APPLICATION BY SUBMITTING THAT THE CONCERNED PERSON S HAVE FILED AFFIDAVITS. IN ITS 7-PAGES APPLICATION THE ASSESSEE HAS ENUMERATED THE REASONS FOR DELAY IN FILING THE APPE AL WHEREIN BROADLY IT HAS BEEN MENTIONED THAT THE ASSESSEE FIR M IS HAVING SPECIFIC DEPARTMENTS TO LOOK AFTER DIFFERENT TASK/B USINESS AND IS HAVING A TAXATION DEPARTMENT FOR TAXATION MATTERS H EADED BY AN EXECUTIVE NORMALLY A CHARTERED ACCOUNTANT OR A PER SON HAVING SIMILAR EXPERTISE AND EXPERIENCE. ONE SHRI BHAVESH JAIN CA WAS CLAIMED TO BE APPOINTED AS A HEAD OF THE TAXATION D EPARTMENT ON 3/11/2008 AND ONE MORE APPOINTMENT ON 1/7/2010 AS A ITA NO.4227 /MUM/2013 3 FINANCE HEAD FURTHER LOOKING AFTER TAXATION DEPART MENT. IT WAS EXPLAINED THAT SHRI BHAVESH JAIN ATTENDED ASSESSMEN T PROCEEDINGS BEFORE THE ASSESSING OFFICER AND ALSO B EFORE THE LD. FIRST APPELLATE AUTHORITY. IT WAS CLAIMED THAT SHRI JAIN DID NOT OBJECT TO THE VALIDITY OF NOTICE ISSUED U/S.143(2) OF THE ACT AND THUS NEW HEAD OF TAXATION DEPARTMENT MR. SUNIL KUKREJA WAS APPOINTED ON 15/6/2011. IT WAS PLEADED THAT THE DIR ECTORS WERE UNDER THE IMPRESSION THAT CA SUNIL KUKREJA AND SANJ AY SHAH WERE IN THE PROCESS OF PREPARATION OF FILING APPEAL BEFORE THE TRIBUNAL BUT HE WENT ON LEAVE TO APPEAR FOR C.A. E XAM. IT WAS CONTENDED THAT WHEN SR. DIRECTOR RESUMED DUTY IN JA NUARY 2013 HE WAS UNDER THE IMPRESSION THAT 2 ND APPEAL HAD ALREADY BEEN FILED. HOWEVER THE APPEAL WAS FILED ON 24/5/2 013. IT WAS SUBMITTED THAT THE DELAY WAS DUE TO BONAFIDE REASON S THEREFORE IT MAY BE CONDONED. 2.1 ON THE OTHER HAND THE LD. CIT-DR SHRI RAJIV RAN JAN PRASAD STRONGLY CONTESTED THAT THE EXPLANATION OF T HE ASSESSEE IS HAVING NO BASIS AND HE TOOK US TO THE CHRONOLOGY OF EVENTS BY FILING SUBMISSIONS BEFORE US. RELIANCE WAS PLACED U PON CERTAIN DECISIONS FROM BOTH SIDES WHICH WILL BE DISCUSSED LATER ON. ITA NO.4227 /MUM/2013 4 2.2 SINCE THERE IS ADMITTED DELAY OF 373 DAYS IN FI LING THE APPEAL BEFORE THIS TRIBUNAL THEREFORE WE TEND TO DISPOSE OF THIS APPLICATION OF THE ASSESSEE FIRST. THE FACTS IN BRI EF ARE THAT THE ASSESSEE FIRM IS IN THE BUSINESS OF MANUFACTURING O F WATCHES AND CALCULATORS AND ALSO IN TRADING OF MOBILES DECLARE D TOTAL INCOME AT RS.7 60 200/- IN ITS RETURN FILED ON 31/10/2007. THE RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT 1961 (HEREINAFTER THE ACT) ON 24/1/2009 . THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY CONSEQUENTLY NOTICE U/S. 143(2) DT. 18/9/2008 WAS ISSUED AND SERVED UPON THE ASSESSEE B Y DCIT - 5(1) MUMBAI. IN RESPONSE TO THE NOTICES SHRI BHAVE SH JAIN FINANCIAL CONTROLLER AND MR. MAHESH MAHARANA ACCOU NTANT ATTENDED THE PROCEEDINGS FROM TIME TO TIME. THE ASS ESSING OFFICER NOTICED THAT DETAILS OF DEDUCTION CLAIMED U /S. 80IC OF THE ACT WERE NOT FILED EVEN ON 24/12/2009. FINALLY TH E TOTAL INCOME WAS ASSESSED AT RS.23 95 801/-. 2.3 ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) THE ASSESSEE FILED ADDITIONAL GROUND WHI CH WERE REMANDED TO ASSESSING OFFICER AND ALSO COUNTER COMM ENTS OF THE ASSESSEE ON THE REPORT SENT BY THE ASSESSING OFFICE R. FINALLY THE ITA NO.4227 /MUM/2013 5 APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. THE ASSE SSEE FILED FURTHER APPEAL BEFORE THIS TRIBUNAL . 2.4. WE HAVE HEARD BOTH THE SIDES ON THE CONDONATIO N OF DELAY. WE NOTE THAT THE ASSESSMENT ORDER U/S. 143(3 ) OF THE ACT WAS PASSED ON 30/12/2009 AGAINST WHICH THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) ON 25/1/2010. THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) DISPOSED OF THE APPEAL VIDE ORDER DT. 2/2/2012 AND AGAINST THE DECISION OF THE LD. COMMISSIONER OF INCOME TAX (APP EALS) ASSESSEE HAS FILED SECOND APPEAL BEFORE THE TRIBUNA L ON 24/5/2013 RESULTING INTO DELAY OF 373 DAYS . NOW QUESTION ARISES WHETHER THE DELAY WAS UNINTENTIONAL OR THE REASONS FOR SUCH DELAY WERE BONAFIDE. THE ASSESSEE THROUGH ITS APPLI CATION FOR CONDONATION OF DELAY HAS CLAIMED THAT THE ASSESSEE IS ASSISTED BY DIFFERENT HEADS FOR DIFFERENT DEPARTMENTS AND MORE SPECIFICALLY THE TAXATION DEPARTMENT WAS HEADED BY AN EXPERIENCE D/EXPERT CHARTERED ACCOUNTANT/EXECUTIVE ASSISTED BY OTHER QU ALIFIED PERSON/PERSONS/FINANCE HEAD. IT IS FURTHER NOTED TH AT THE EXPERT PERSONS ATTENDED THE ASSESSMENT PROCEEDINGS FROM 3/ 11/2008 TO 31/8/2011 MEANING THEREBY RIGHT FROM ASSESSMENT STAGE THE ASSESSEE FIRM WAS ASSISTED BY EXPERT PERSONS. EVEN AS MENTIONED ITA NO.4227 /MUM/2013 6 BY THE ASSESSEE ITSELF THE TAXATION HEAD SHRI BHAV ESH JAIN DID NOT RAISE ANY OBJECTION TO THE VALIDITY OF NOTICE U /S. 143(2) OF THE ACT AND ANOTHER HEAD SHRI SUNIL KUKREJA WAS APPOINT ED ON 15/6/2011. IT IS ADMITTED FACT THAT RIGHT FROM ASSE SSMENT STAGE THE ASSESSEE FIRM WAS ASSISTED BY EXPERT PERSONS. T HE ASSESSEE CLAIMED TO HAVE RECEIVED THE FIRST APPELLATE ORDER ON 19/3/2012 AND STILL NOW THE ASSESSEE IS CLAIMING THAT THE DIR ECTORS WERE UNDER THE IMPRESSION THAT THEIR EXPERT PERSONS HAVE FILED APPEAL. WE ARE AWARE THAT IF DUE TO CERTAIN UNAVOIDABLE CIR CUMSTANCES THERE IS A DELAY OF A FEW DAYS THEN FOR THE SUBSTA NTIAL CAUSE OF JUSTICE IF DELAY IS EXPLAINED THEN WE ARE EXPECTE D TO TAKE A LENIENT VIEW. HOWEVER THE ASSESSEE HAS NOT EXPLAIN ED THE DELAY BUT DELIBERATELY TRIED TO PUT THE BLAME ON ITS TAXA TION HEADS/EXPERT PERSON/S AND PRESUMED THAT APPEAL MIGH T HAVE BEEN FILED. IT IS BEYOND THE IMAGINATION OF ANYBODY THAT WHEN THE ASSESSEE IS ASSISTED BY TAX EXPERTS THE DELAY OF S UCH A MAGNITUDE CANNOT HAPPEN. THE LAW IS WELL ESTABLISHE D THAT THE ASSESSEE HAS TO EXPLAIN THE DELAY OF EACH DAY IN FI LING THE APPEAL. UNDER THE FACTS AVAILABLE ON RECORD WE ARE EXPECTED TO DRAW A DISTINCTION IN A MINOR DELAY OR A CASE WHERE THE DE LAY IS INORDINATE. WE ARE USEFULLY QUOTING A PART OF THE D ECISION IN THE ITA NO.4227 /MUM/2013 7 CASE OF VEDABHAI V. SHANTARAM (253 ITR 798) FROM HO N'BLE APEX COURT WHICH READS AS UNDER :- IN EXERCISING DISCRETION U/S 5 OF THE LIMITATION AC T 1963 TO CONDONE DELAY FOR SUFFICIENT CAUSE IN NOT PREFER RING AN APPEAL OR OTHER APPLICATION WITHIN THE PERIOD PRESC RIBED 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 CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR AND CALLS FOR A MORE CAUTIOUS APPROACH IN THE LATER CASE NO SUCH CONSID ERATION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROA CH. NO HARD AND FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE ITS DISCRETION ON THE FACTS O F EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EXPRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBST ANTIAL JUSTICE IS OF PRIME IMPORTANCE. THE EXPRESSION SUF FICIENT CAUSE SHOULD RECEIVE A LIBERAL CONSTRUCTION. 2.4.1 WHILE DISPOSING OF THE AFORESAID APPEAL IN T HE CASE OF VEDABHAI THE HON'BLE APEX COURT ITSELF HAS CONCLUD ED THAT A DISTINCTION HAS TO BE MADE BETWEEN INORDINATE DELAY AND A CASE WHERE THE DELAY IS OF FEW DAYS AND THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE. IN THE PRESEN T APPEAL ADMITTEDLY THERE IS A SUBSTANTIAL DELAY OF 373 DAY S WHICH IN OUR HUMBLE OPINION IF CONDONED MAY DEFEAT THE VERY PU RPOSE OF THE LIMITATION PERIOD PROVIDED U/S 5 OF THE LIMITATION ACT ITSELF. IT IS NOT A CASE OF DELAY OF FEW DAYS. IF THIS SUBSTANTIA L DELAY IS CONDONED THEN THERE IS NO MEANING OF LIMITATION ACT . WE ARE AWARE THAT THE SUBSTANTIAL CAUSE OF JUSTICE IS AL SO OF PARAMOUNT ITA NO.4227 /MUM/2013 8 IMPORTANCE BUT SUFFICIENT CAUSE FOR ADVANCING SUB STANTIAL JUSTICE HAS TO BE ADDUCED/EXPLAINED. BEFORE US THE ASSESSEE HAS NOT PROVED WITH EVIDENCE OR REASONS THAT THE ASSESS EE WAS PREVENTED BY UNAVOIDABLE CIRCUMSTANCES OR THERE WAS A SUFFICIENT CAUSE IN NOT FILING THE APPEAL IN TIME WHICH IS DELAYED BY 373 DAYS. AS PER SEC. 253 OF THE ACT AN Y ASSESSEE/PARTY AGGRIEVED BY THE ORDER OF THE FIRST APPELLATE AUTHORITY OR THE ORDER OF THE CHIEF COMMISSIONER OR A DIRECTOR GENERAL OR A DIRECTOR MAY FILE APPEAL BEFORE THE T RIBUNAL WITHIN SIXTY DAYS FROM RECEIPT OF THE ORDER BY THE ASSESSEE/PARTY/DEPARTMENT (AS THE CASE MAY BE) WHE REAS IN THE PRESENT CASE THE APPEAL HAS BEEN FILED AFTER 373 D AYS FROM THE EXPIRY OF THE LIMITATION PERIOD PROVIDED U/S 253 OF THE ACT. OUR VIEW IS FURTHER FORTIFIED BY THE RATIO LAID DOWN BY HONBLE MADRAS HIGH COURT IN MADHU DADHA VS. ACIT (2009) 317 ITR 45 8 (MAD) WHERE THE ASSESSEE FAILED TO SHOW REASONABLE CAUSE FOR THE DELAY. THE HON'BLE HIGH COURT HELD THAT THE DELAY MAY NOT BE CONDONED. THE RATIO LAID DOWN BY HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) (MP) FURTHER SUPPORTS OUR VIEW. SO FAR AS THE DECISION RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE LIK E KUBER ITA NO.4227 /MUM/2013 9 TOBACCO PRODUCTS PVT. LTD. ETC. VS. DCIT 310 ITR (A T) 300(DEL)(SB); CIT VS. PANORMA BUILDERS PVT. LTD. (T AX APPEAL NO.435 OF 2011) ORDER DT.30/8/2012; CIT VS. SALMAN KHAN (INCOME TAX APPEAL (L)NO.2362 OF 2009; ETC. ARE CON CERNED EITHER THESE CASES PERTAIN TO ISSUE OF NOTICE U/S. 143(2) OF THE ACT OR DISTINGUISHABLE ON FACT THEREFORE MAY NOT HELP TH E ASSESSEE. HOWEVER IN THE PRESENT APPEAL FIRSTLY THERE IS A CONTRADICTION IN THE CLAIM OF THE ASSESSEE WITH RESPECT TO FACTS AND SECONDLY IT IS MERELY AN AFTERTHOUGHT AND A MAKE BELIEVE STORY CRE ATED BY THE ASSESSEE TO COVER UP THE DELAY. THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. RAM MONOHAR KABRA (257 ITR 77 3) (P & H) OBSERVED AND HELD AS UNDER: WHERE THE LEGISLATURE SPELLS OUT A PERIOD OF LIMITATION AND PROVIDES FOR POWER TO CONDONE THE DELAY AS WELL SUCH DELAY CAN BE CONDONED ONLY FOR SUFFICIENT AND GOOD REASONS SUPPORTED BY COGENT AND PROPER EVIDENCE. IT IS A SETTLED PRINCIPLE OF L AW THAT PROVISIONS RELATING TO THE SPECIFIED PERIOD OF LIMITATION MUST BE APPLIED WITH THEIR RIGOUR AND EFFECTIVE CONSEQUENCES. AUTHORITIES EXERCISING QUAS I- 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 THAT PER SE WOULD NOT MAKE SUCH CONTROVERSY A QUESTION OF LAW. SO LONG AS SUCH DECISION OF THE AUTHORITY IS IN CONFORMITY WITH THE PRINCIPLE OF LA W AND IS APPARENTLY A PRUDENT ONE THE COURT WOULD NORMALLY BE RELUCTANT TO INTERFERE IN SUCH EXERCISE OF DISCRETION. ONCE THE CONCERNED AUTHORITY APPLIES IT S ITA NO.4227 /MUM/2013 10 MIND AND DECLINES TO CONDONE THE DELAY IN FILING TH E APPEAL FOR GOOD AND APPROPRIATE REASONS IT CANNOT GIVE RISE TO A QUESTION OF LAW. HELD THAT SPECIFIC REASONS HAD BEEN GIVEN BY THE TRIBUNAL FOR REFUSAL TO CONDONE THE DELAY IN FILING THE APPEAL WHICH WERE NOT ONLY LOGICAL BUT REFLECTED TH E CONDUCT OF THE DEPARTMENT BEFORE THE AUTHORITIES IN NOT PRODUCING THE RECORD INSPITE OF SEEKING TIME. N O QUESTION OF LAW AROSE FROM THE ORDER. 2.5 IN SUCH TYPE OF MATTER WE ARE EXPECTED TO EXAM INE WHETHER THE MISTAKE IS BONA FIDE OR MERELY A DEVICE TO COVE R-UP WITH ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE COUNSEL OR AN ATTEMPT TO SAVE LIMITATION IN AN UNJUSTIFIED MANNER . THE COURT MUST SEE WHETHER IN SUCH CASES THERE IS ANY TAINT OF MALA FIDES OR ELEMENT OF RECKLESSNESS OR RUSE. AT THE SAME TIM E THE ASSESSEE IS EXPECTED TO EXPLAIN EACH DAYS DELAY. T OTALITY OF FACTS CLEARLY INDICATES THAT THE STORY EXPLAINED BY THE A SSESSEE IS WITHOUT ANY BASIS. EVEN OTHERWISE A LINE HAS TO BE DRAWN BETWEEN THE BONA FIDE LITIGANTS AND WHO CONCOCT T HE STORY ON THE BASIS OF AFTER-THOUGHT. WE FURTHER FIND SUPPORT FRO M THE DECISION OF THE INDORE BENCH OF THE TRIBUNAL (WHEREIN ONE OF US (JM) WAS SIGNATORY TO THE ORDER) IN THE CASE OF M/S. VAISHN AV FIBRES (ITA NO.398/IND./2011 OF MAY 2013 WHEREIN THERE WAS DEL AY OF 347 DAYS THE TRIBUNAL DISMISSED THE APPLICATION/APPEAL OF THE ASSESSEE. THE REQUIREMENT OF THE LAW IS TO CONSIDER WHETHER THE ITA NO.4227 /MUM/2013 11 REASONS CONTENDED BY THE ASSESSEE FOR CONDONATION O F DELAY ARE BONAFIDE AND ALSO WHETHER THE ASSESSEE HAS ACTED W ITH REASONABLE DILIGENCE AND ALSO WHETHER THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR NOT FILING THE AP PEAL WITHIN THE PRESCRIBED LIMITATION PERIOD. WE ARE SATISFIED THAT THE EXPLANATION PUT FORTH BY THE ASSESSEE DOES NOT CONS TITUTE SUFFICIENT CAUSE FOR THE CLAIMED DELAY RATHER IT S A CASE OF GROSS NEGLIGENCE/INACTION ON THE PART OF THE ASSESSEE. AT THE SAME TIME IT IS SETTLED LAW THAT RIGOURS OF LIMITATION MUST A PPLY WHERE THE STATUTE SO PROVIDES . LIMITATION CANNOT BE CONDONED ON COMPASSION OR EQUITABLE CONSIDERATION OR WHERE THE APPROACH OF THE APPLICANT IS CALLOUS. THE RATIO LAID DOWN FROM HON'BLE APEX COURT IN P.K. RAMACHANDRAN VS. STATE OF KERALA & OR S. (1997) 7 SCC 556 SUPPORTS OUR VIEW WHEREIN IT WAS HELD AS U NDER :- THE LAW OF LIMITATION MAY HARSHLY AFFECT A PARTICULAR PARTY BUT IT HAS TO APPLY WITH ALL ITS RIGOURS WHEN THE STATUTE SO PRESCRIBES AND THE COURTS HAVE NO POWER TO EXTEND THE PERIOD OF LIMITATION ON EQUITABLE GROUNDS. THE DISCRETION EXERCISED BY THE HIGH COURT WAS THUS NEITHER PROPER NOR JUDICIOUS. THE ORDER CONDONING THE DELAY CANNOT BE SUSTAINED. THIS APPEAL THEREFORE SUCCEEDS AND THE IMPUGNED ORDER IS SET ASIDE. CONSEQUENTLY THE APPLICATION FOR CONDONATION OF DELAY FILED IN THE HON'BLE HIGH COURT WOULD STAND ITA NO.4227 /MUM/2013 12 REJECTED AND THE MISCELLANEOUS FIRST APPEAL SHALL STAND DISMISSED AS BARRED BY TIME. IN THE CASE OF MUNICIPAL CORPN. OF DELHI VS. INTERN ATIONAL SECURITY & INTELLIGENCE AGENCY LTD. (2004) 3 SCC 25 0 THE HON'BLE APEX COURT HELD AS UNDER :- 21.. IT HAS TO BE REMEMBERED THAT THE LAW OF LIMITATION OPERATES WITH ALL ITS RIGOURS AND EQUITABLE CONSIDERATIONS ARE OUT OF PLACE IN APPLYING THE LAW OF LIMITATION. THE CROSS OBJECTORS OUGHT TO HAVE FILED APPEAL WITHIN THE PRESCRIBED PERIOD OF LIMITATION CALCULATED FROM THE DATE OF THE ORDER IF HE WISHES TO DO SO. HAVING ALLOWED THAT OPPORTUNITY TO LAPSE HE GETS ANOTHER EXTENDED PERIOD OF LIMITATION COMMENCING FROM THE DATE OF SERVICE OF NOTICE OF APPEAL ENABLING HIM PUTTING IN ISSUE FOR CONSIDERATION OF THE APPELLATE COURT ON THE SAME GROUNDS WHICH HE COULD HAVE OTHERWISE DONE BY WAY OF FILING AN APPEAL. THIS EXTENDED PERIOD OF LIMITATION COMMENCES FROM THE DATE OF SERVICE OF THE NOTICE OF APPEAL AND SUCH NOTICE OUGHT TO BE A VALID OR COMPETENT APPEAL. THE RATIO LAID DOWN IN THE FOLLOWING CASES FURTHER SUPPORTS OUR VIEW:- G RAMEGOWDA MAJOR VS. SPECIAL LAND ACQUISITION (1988 )AIR 897 (1988)SCR (3)198; BHAGWANA VS. TARACHAND AND ORS. CM NO.11634-C OF 20 07 IN RSA NO.4122 OF 2007 ORDER DT.18/1/2008. ITA NO.4227 /MUM/2013 13 AMBIKA RANJAN VS. MANEKGANJ LOAN OFFICE 55 CAL 798 SURENDRA MOHAN VS. MAHENDRANATH 59 CAL. 781 BRETT M. R IN HIGHTONE VS. TREHERNA 1879 (48 L J EX 167) IN THE AFORESAID CASES THE QUESTION WAS AS TO HOW F AR A PARTY WOULD SUFFER FOR THE NEGLIGENCE OF HIS LEGAL ADVISO R AND ON CONSIDERATION IT WAS OBSERVED AS UNDER :- IN CASES WHERE A SUITOR HAS SUFFERED FROM THE NEGLIGENCE OR IGNORANCE OR GROSS WANT OF LEGAL SKILL OF HIS LEGAL ADVISOR HE HAS THE REMEDY AGAINST THE LEGAL ADVISOR AND IN THE MEANTIME THE SUITOR MUST SUFFER. BUT WHERE THERE HAS BEEN A BONAFIDE MISTAKE NOT FROM MISCONDUCT NOR THROUGH NEGLIGENCE NOR THROUGH WANT OF REASONABLE SKILL BUT SUCH A SKILLED PERSON MIGHT MAKE I VERY MUCH DISLIKE THE IDEA THAT THE RIGHTS OF THE CLIENT SHOULD BE THEREBY FORFEITED . IN THE PRESENT CASE I CANNOT HOLD THAT THE LEGAL ADVISOR OF THE PETITIONER WAS NOT GUILTY OF NEGLIGENCE BEARING IN MIND THE DEFINITION OF GOOD FAITH GIVEN IN THE LIMITATION ACT. THEREFORE IN VIEW OF THE RATIO LAID DOWN BY VARIO US HON'BLE HIGH COURTS AS WELL AS HON'BLE APEX COURT WE FIND NO ME RIT IN THE CASE OF THE ASSESSEE FOR CONDONING THE DELAY. THE A SSESSEE HAS DELIBERATELY PUT THE BLAME OF NEGLIGENCE OR INACTIO N ON THEIR TAX EXPERT. EVEN IF THERE WAS ANY INACTION ON THEIR PAR T THE ASSESSEE HAS TO EXPLAIN THE DELAY OF EACH DAY. RATHER OTHERW ISE THE LAW IS ITA NO.4227 /MUM/2013 14 AGAINST THE ASSESSEE THEREFORE THE APPELLANT HAS TO SUFFER FOR NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATI ON MORE SPECIFICALLY WHEN THE ASSESSEE WAS NOT PREVENTED B Y SUFFICIENT CAUSE AS THE SUBSTANTIVE RIGHT ACCRUED IN FAVOUR OF THE OTHER PARTY CANNOT BE TAKEN AWAY WITHOUT ANY REASONABLE G ROUND. AS WE HAVE DISCUSSED IN PRECEDING PARAS OF THIS ORDER THE ASSESSEE WAS ASSISTED BY A TEAM OF EXPERTS/TAXATION HEADS/QU ALIFIED PERSONS THEREFORE WE FIND NO MERIT IN THE CLAIM O F THE ASSESSEE FOR CONDONING THE DELAY. CONSEQUENTLY THE APPLICAT ION OF THE ASSESSEE HAVING NO MERIT THEREFORE DISMISSED. 3. SINCE WE HAVE DISMISSED THE APPLICATION OF THE A SSESSEE FOR CONDONATION OF DELAY THEREFORE THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE CONSEQUENTLY DISMISSED AS SUCH. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DAY OF NOVEMBER 2014 . . ' + - /!0 28.11.2014 ' 7 SD/- SD/- (SANJAY ARORA) (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /! DATED : 28 TH NOV. 2014. !../ JV SR. PS . ITA NO.4227 /MUM/2013 15 . ' %)8 98-) . ' %)8 98-) . ' %)8 98-) . ' %)8 98-)/ COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. : ( ) / THE CIT MUMBAI. 4. : / CIT(A)-13 MUMBAI 5. 8=7 %)! / DR ITAT MUMBAI 6. 7> ? / GUARD FILE. .! .! .! .! / BY ORDER &8) %) //TRUE COPY// @ @@ @/ // /A B A B A B A B (DY./ASSTT. REGISTRAR) / ITAT MUMBAI