ANEEKA UNIVERSAL PRIVATE LIMITED, MUMBAI v. PR.CIT-9, MUMBAI

ITA 7115/MUM/2018 | 2013-2014
Pronouncement Date: 29-11-2019 | Result: Dismissed

Our System has flagged this appeal as eligible for Vivad Se Vishwas Scheme. If you are party to this appeal, get on a Free Consultation Call with our team of Legal Experts who shall guide you as to how you can save huge Interest and Penalty in VSV Scheme.


Apply Now
        
Try VSV Calculator

Appeal Details

RSA Number 711519914 RSA 2018
Assessee PAN AAJCA9423H
Bench Mumbai
Appeal Number ITA 7115/MUM/2018
Duration Of Justice 11 month(s) 19 day(s)
Appellant ANEEKA UNIVERSAL PRIVATE LIMITED, MUMBAI
Respondent PR.CIT-9, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 29-11-2019
Last Hearing Date 19-02-2019
First Hearing Date 19-02-2019
Assessment Year 2013-2014
Appeal Filed On 10-12-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUM BAI BEFORE SHRI SAKTIJIT DEY JUDICIAL MEMBER & SHRI G. MANJUNATHA ACCOUNTANT MEMBE R ITA NO.7115/MUM/2018 ( ASSESSMENT YEAR: 2013-14 ) ANEEKA UNIVERSAL P.LTD 502 GHANSHYAM CHAMBER B-12 NEW LINK ROAD ANDHERI(W) MUMBAI-400 053 VS. PR.CIT-9 AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 PAN/GIR NO.AAJCA9423H ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY SHRI. VODAL RAJ SINGH CIT DR ASSESSEE BY SHRI. VIJAY MEHTA ADVOCATE DATE OF HEARING 0 4/1 0 /2019 DATE OF PRONOUNCEME NT 29 /1 1 /2019 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX 09 MU MBAI U/S 263 OF THE I.T.ACT 1961 FOR THE ASSESSMENT YEAR 2013 -14. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL 1. THE ORDER PASSED BY THE ID. PR. CIT U/S. 263 OF THE INCOME-TAX ACT 1961 IS ILLEGAL AND BAD IN LAW. 2. THE ID. PR CIT HAS ERRED IN LAW AND ON FACT S IN HOLDING THAT THE ORDER DATED 29.03.2016 PASSED U/S. 143(3) OF THE AC T BY THE ASSESSING OFFICER WAS ERRONEOUS AND PREJUDICIAL TO THE INTERE STS OF THE REVENUE. 3. THE ID. PR CIT HAS ERRED IN LAW AND ON FACT S IN HOLDING THAT THE ORDER PASSED U/S. 143(3) OF THE ACT ALLOWING DEDUCT ION U/S. 57 OF THE ACT IN RESPECT OF INTEREST EXPENDITURE OF RS.1422847/- WAS ERRONEOUS AND PREJUDICIAL LO THE INTERESTS OF THE REVENUE. ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 2 4. THE ID. PR. CIT HAS ERRED IN LAW AND ON FACT S IN SETTING ASIDE THE ORDER PASSED U/S. 143(3) OF THE ACT AND IN DIRECTIN G THE ASSESSING OFFICER TO PASS A FRESH ORDER WITH RESPECT LO THE FOLLOWING ISSUES: (I) SHAVE APPLICATION MONEY OF RS.72552 000 / - RECEIVED FROM SHRI AMRIT RAJANI; AND (II) SHARE APPLICATION MONEY OF RS.85117856/- RECEIVED FROM M/S. WHIZ ENTERPRISES PVT.LTD. 5. THE ID. PR CIT OUGHT TO HAVE APPRECIATED TH AT THE ASSESSING OFFICER HAD ALREADY EXAMINED THE AFORESAID ISSUES AND IT WA S AFTER JUDICIOUSLY CONSIDERING THE SUBJECT-MATTERS THAT A DECISION THE REON WAS TAKEN. 6. THE APPELLANT CRAVES LEAVE TO ADD TO AMEND ALTER OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING THE LD. AR FOR THE ASSES SEE SUBMITTED THAT THERE IS A DELAY OF 191 DAYS IN FILING THE CAP TIONED APPEAL BEFORE THE TRIBUNAL FOR WHICH NECESSARY APPLICATION FOR C ONDONATION OF DELAY ALONG WITH AFFIDAVIT HAS BEEN FILED EXPLAININ G REASONS FOR DELAY IN FILING APPEAL. THE LD. AR FOR THE ASSESEE FURTH ER SUBMITTED THAT THE PCIT-9 MUMBAI PASSED THE ORDER U/S 263 OF THE I.T.ACT 1961 ON 23/03/2018 AND SAID ORDER WAS RECEIVED BY THE ASSES SEE ON 03/04/2018. THE ASSESSEE OUGHT TO HAVE FILED APPEAL WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF ORDER I.E ON OR BEFORE 01/06/2018 BUT THE PRESENT APPEAL HAS BEEN FILED ON 10/12/2018 WHICH RESULTED IN DELAY OF 191 DAYS IN FILING THE APPEAL. THE REASONS FOR D ELAY IN FILING APPEAL HAS BEEN EXPLAINED IN THE APPLICATION FOR CONDONATI ON OF DELAY AS PER WHICH THE PROCEEDINGS BEFORE THE LD.PCIT WAS AT TENDED BY SHRI NILESH Y.JAGIWALA PARTNER OF JAGIWALA & COMPANY CH ARTERED ACCOUNTANT. ACCORDING TO SHRI NILESH Y.JAGIWALA TH ERE IS NO NEED OF FILING ANY APPEAL AGAINST ORDER OF THE PCIT PASSED U/S 263 BECAUSE THE PCIT HAS SET ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT 1961 FOR FRESH CONSIDERATION OF THE ISSUE S DISCUSSED IN THIS ORDER AND HENCE NO ACTION WAS REQUIRED TO BE TAKEN THEREON AS WE COULD ADJUDICATE THE CONSEQUENTIAL ORDER WHICH WAS TO BE PASSED BY THE LD. AO. DURING THE CONSEQUENTIAL ASSESSMENT PRO CEEDINGS ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 3 WHICH ARE STILL UNDER WAY THE ASSESSEE FELT THAT T HE LD. AO IS DETERMINED TO DISALLOW INTEREST EXPENDITURE AND TO MAKE ADDITIONS IN RESPECT OF SHARE APPLICATION MONEY ON THE DIRECTIO N OF THE PCIT. IN VIEW OF THE APPREHENSION THE ASSESSEE HAD CONSULT ED ANOTHER COUNSEL ON 07/12/2018 WHERE THE COUNSULTANT SUGGE STED TO FILE APPEAL AGAINST THE ORDER OF PCIT U/S 263 OF THE I. T.ACT 1961. IT WAS THEN THAT INCORRECTNESS OF THE ADVICE RECEIVED AND THE INADVERTENT LAPSE IN NOT FILING OF THE APPEAL AGAINST THE REVIS ION ORDER WERE REALIZED. THEREFORE THE ASSESSEE HAD TAKEN STEPS T O FILE APPEAL AGAINST THE ORDER OF THE PCIT WHICH RESULTED IN DE LAY OF 191 DAYS. HE FURTHER SUBMITTED THAT THE SAID DELAY IN FILING THE APPEAL WAS NOT DUE TO ANY DELIBERATE LAPSE OR NEGLIGENCE BUT DUE TO CIRCUMSTANCES BEYOND OUR CONTROL AND HENCE THE DELAY IN FILING APPEAL MAY BE CONDONED IN THE INTEREST OF JUSTICE AND EQUITY. IN THIS REGARD HE HAD FILED AFFIDAVIT OF THE ASSESSEE ALONG WITH AFFIDAVI T OF SHRI NILESH Y.JAGIWALA WHERE HE HAD CONFIRMED THAT HE HAD ADVI SED NOT TO FILE APPEAL AGAINST ORDER PASSED BY THE PCIT U/S 263 OF THE ACT. THE ASSESSEE HAD ALSO RELIED UPON VARIOUS JUDICIAL PREC EDENTS. THE RELEVANT CONTENTS OF PETITION FILED BY THE ASSESSEE FOR CONDONATION OF DELAY IN FILING APPEAL ARE AS UNDER:- 1. KINDLY REFER TO THE CAPTIONED APPEAL BEING FILED AGAINST THE ORDER OF THE ID. AY CIT-9 MUMBAI DATED 23.03.2018 PASSED U/S. 2 63 OF THE ACT FOR A Y. 2013-14. SINCE THE ORDER APPEALED AGAINST WAS RECEIVED ON 03.04.2018 THE AFORESAID APPEAL IS BELATED BY 191 DAYS. WE THEREFORE BEG TO FURNISH THE RELEVANT FACTS LEADING TO THIS D ELAY WITH A FERVENT REQUEST FOR ITS CONDONATION 2. THE ASSESSMENT FOR THE YEAR UNDER CONSIDER ATION WAS COMPLETED U/S 143(3) OF THE ACT ON 29.03.2016 AFTER DUE DELI BERATIONS. THE SAID ORDER HOWEVER WAS SUBJECTED TO PROCEEDINGS U/S. 2 63 OF THE ACT AND THEY WERE ATTENDED TO BY SHRI NILESH Y. JAGIWALA P ARTNER OF JAGIWALA AND CO CHARTERED ACCOUNTANTS ON OUR BEHALF. THEREFORE UPON RECEIPT OF THE ORDER OF THE ID. PR. CIT ON 03.04.2018 IT WAS FOR WARDED TO SHRI NILESH Y. ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 4 JAGIWALA FOR STUDY AND ADVICE. ACCORDING TO SHRI NI LESH Y. JAGIWALA SINCE THE ORDER PASSED U/S 143(3) OF THE ACT WAS SET ASI DE AND A FRESH ORDER WAS DIRECTED TO BE PASSED VIDE !HE CONCLUDING PARAG RAPH OF THE REVISION ORDER NO ACTION WAS REQUITED TO BE TAKEN THEREON AS WE CO ULD AGITATE THE CONSEQUENTIAL ORDER WHICH WAS TO BE PASSED BY THE A SSESSING OFFICER. 3 IT IS SUBMITTED THAT DURING THE COURSE OF THE CO NSEQUENTIAL ASSESSMENT PROCEEDINGS WHICH ARE STILL UNDERWAY VERY RECENTL Y WE FELT THAT THE ASSESSING OFFICER IS DETERMINED TO DISALLOW THE INT EREST EXPENDITURE AND TO MAKE ADDITIONS IN RESPECT OF THE SHARE APPLICATI ON MONEY RECEIVED BASED UPON THE DIRECTIONS GIVEN BY THE LD.PR. CIT. IN VIEW OF THE APPREHENSION WHICH WE ENTERTAINED WE HAD CONFERENC E WITH A COUNSEL ON 07.12.2018 WHEN HE ENQUIRED ABOUT THE STATUS OF THE APPEAL FILED AGAINST THE REVISION ORDER. IT WAS THEN THAT THE IN CORRECTNESS OF THE ADVICE RECEIVED AND THE INADVERTENT LAPSE IN NOT FI LING APPEAL AGAINST THE REVISION ORDER WERE REALIZED. IT IS SUBMITTED THAT IMMEDIATELY THEREAFTER STEPS WERE TAKEN FOR MAKING PAYMENT OF THE REQUISIT E APPEAL FEE AND FOR GETTING THE GROUNDS DRAFTED. SINCE THE REQUISITE FE E WAS PAID ON 07.12.2018 AND GROUNDS OF APPEAL WERE FINALIZED AND SIGNED ON 08.12.2018 ME APPEAL IS BEING FILED ON THE FOLLOWI NG WORKING DAY I.E. ON 10.12.2018 ITSELF. 4. WE REPEAL AND REITERATE THAT THE DELAY OF 191 DAYS IN FILING THE CAPTIONED APPEAL WAS NOT DUE TO ANY DELIBERATE LAPS E- OR NEGLIGENCE ON OUR PART BUT DUE TO CIRCUMSTANCES BEYOND OUR CONTRO L ACCORDINGLY WE HUMBLY PRAY THAT THIS HON'BLE TRIBUNAL MAY BE PLEAS ED TO CONDONE THE DELAY AND TO ADMIT THE APPEAL FOR ADJUDICATION AND DISPOSAL IN THE INTERESTS OF JUSTICE AND EQUITY. WE ARE ENCLOSING H EREWITH AN AFFIDAVIT OF THE APPLICANT IN SUPPORT OF THE STATEMENTS MADE IN THIS APPLICATION MARKED AS ANNEXURE-A. WE ARE ALSO ENCLOSING HEREWIT H ANOTHER AFFIDAVIT DEPOSED BY SHRI NILESH Y.JAGIWALA CHARTERED ACCOUN TANT SUBSCRIBING TO THE PLEADINGS CONTAINED HEREIN MARKED AS ANNEXURE- B. 5. IN THIS CONNECTION WE PLACE RELIANCE UPON THE FOLLOWING DECISIONS WITH THE RELEVANT FINDINGS THERE FROM (I) COLLECTOR LAND ACQUISITION V. MAT. KATI JI & ORS. (167 1TR 471) 'THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DEL AY BY ENACTING SECTION 5 OF THE LIMITATION ACT 1963 IN ORDER TO ENABLE THE COURTS TO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATT ERS ON MERITS. THE EXPRESSION 'SUFFICIENT CAUSE' IN SECTION 5 IS ADEQU ATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB SERVES THE ENDS OF JUSTICE-THAT BEING THE LIFE-PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. A JUSTIFIABLY LIBERAL APPROA CH HAS TO BE ADOPTED ON PRINCIPLE. 'EVEN DAY'S DELAY MUST BE EXPLAINED' DOES NOT IMPLY A PEDANTIC APPROACH. THE DOCTRINE MUST BE APPLIED IN A RATIONA L COMMON SENSE AND PRAGMATIC MANNER................................... ................ WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO N ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED FOR ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 5 THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY.' (II) N_. BALAKRISHNAN V M. RAMAMURTHY [(199 8) 7 SCC1231 '12. A COURT KNOWS THAT REFUSAL TO CONDONE DELAY WO ULD RESULT IN FORECLOSING A SUITOR FORM PUTTING FORTH HIS CAUSE. THERE IS NO PRESUMPTION THAT DELAY IN APPROACHING THE COURT IS ALWAYS DELIB ERATE. THIS COURT HAS HELD THAT THE WORDS 'SUFFICIENT CAUSE' UNDER SECTIO N 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVA NCE SUBSTANTIAL JUSTICE VIDE SHAKUNTALA DEVI JAIN V. KUNTAL KUMARI(AIR 1969 SC 575) AND STATE OF W.B. V. ADMINISTRATOR HOWRAH MUNICIPALITY (AIR 1972 SC 949)'. (III) VIJAY VISHIN MEGHANI V. DCIT [398 ITR 250 (BO M)] THE ASSESSES FILED APPEALS WITH A DELAY OF 2984 DA YS BEFORE THE APPELLATE TRIBUNAL FOR THE ASSESSMENT YEARS 1994-95 AND 1996-97 AGAINST THE DECISION OF USE COMMISSIONER (APPEALS) DENYING THE DEDUCTION CLAIMED UNDER SECTION 80-O OF THE INCOME- TAX AT 1961. THE ASSESSES SUBMITTED AN AFFIDAVIT STATING THAT HE FOL LOWED THE ADVICE GIVEN BY HIS CHARTERED ACCOUNTANT NOT TO FILE FURTHER APP EALS BEFORE THE TRIBUNAL FOR THE ASSESSMENT YEARS 1994-95 AND 1996-97 AS TH E ISSUE INVOLVED WAS IDENTICAL TO THE APPEAL FILED BEFORE THE TRIBUN AL FOR THE ASSESSMENT YEAR 1993-94 WHICH WAS THEN PENDING BEFORE THE TRI BUNAL TO AVOID MULTIPLICITY OF LITIGATION AND THAT AFTER THE ADJUD ICATION OF APPEAL FOR THE ASSESSMENT YEAR 1993-94 BY THE TRIBUNAL HE COULD M OVE A RECTIFICATION APPLICATION BEFORE THE ASSESSING OFFICER TO BRING T HE ASSESSMENT ORDER IN CONFORMITY WITH THE DECISION OF THE TRIBUNAL. IN SU PPORT OF THE AVERMENTS MADE IN THE AFFIDAVIT THE ASSESSE ALSO FILED AN AF FIDAVIT BY ONE OF THE PARTNERS OF THE FIRM OF CHARTERED ACCOUNTANTS. THE TRIBUNAL DISMISSED THE APPEAL IN LIMINE AND OBSERVED THAT A CHARTERED ACCO UNTANT COULD NOT HAVE GIVEN AN ABSURD ADVICE. THE AFFIDAVIT FILED BY THE FIRM OF CHARTERED ACCOUNTANTS WAS REJECTED. THE AFFIDAVIT FILED BY TH E ASSESSEE WAS ALSO REJECTED ON THE GROUND THAT IT GAINED STRENGTH ONLY FROM THE AFFIDAVIT FILED BY THE FIRM OF CHARTERED ACCOUNTANTS. ............. ............................... HELD ALLOWING THE APPEALS THAT NONE SHOULD HE DEP RIVED OF AN ADJUDICATION ON THE MERITS UNLESS THE COURT OR THE TRIBUNAL OR APPELLATE AUTHORITY FOUND THAT THE LITIGANT HAD DELIBERATELY AND INTENTIONALLY DELAYED FILING OF THE APPEAL THAT HE WAS CARELESS NEGLIGE NT AND HIS CONDUCT- LACKED BONA FIDES. THOSE WERE THE RELEVANT FACTORS. THE TRIBUNAL'S ORDERS DID NOT MEET THE REQUIREMENT SET OUT IN SAW. IT HAD MISDIRECTED ITSELF AND HAD TAKEN INTO ACCOUNT FACTORS TESTS AND CONSIDERA TIONS WHICH HAD NO NEXUS TO THE ISSUES AT HAND THE TRIBUNAL THEREFORE HAD ERRED IN LAW AND ON FACTS IN REFUSING TO CONDONE THE DELAY. THE EXPL ANATION PLACED ON AFFIDAVIT WAS NOT CONTESTED NOR COULD IT HAVE BEEN CONCLUDED THAT THE ASSESSES WAS AT FAULT THAT HE HAD INTENTIONALLY AN D DELIBERATELY DELAYED THE MATTER AND HAD NO BONA FIDE OR REASONABLE EXPLA NATION FOR THE DELAY IN FILING THE PROCEEDINGS. THE POSITION WAS OTHERWI SE. THE DELAY OF 2984 DAYS IN FILING THE APPEALS WAS CONDONED ON THE COND ITION OF PAYMENT OF QUANTIFIED COSTS TO THE DEPARTMENT. THE TRIBUNAL WA S DIRECTED TO RESTORE THE APPEALS OF THE ASSESSEE TO ITS FILE FOR ADJUDIC ATION ON PROOF OF COST OF PAYMENTS.' ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 6 [IV) SONERAO SADASHIVRAO PATIL& ANR. V. CODAWOR IBAI [1999 (2) MH. L.J 273] 'THE PRIMARY FUNCTION OF A COURT TO IS TO ADJUDICAT E THE DISPUTES BETWEEN THE CONTESTING PARTIES AND TO ADVANCE SUBSTANTIAL J USTICE. THE RULES OF LIMITATION ARE NOT MADE TO HARM THE VALUABLE RIGHTS OF THE PARTIES. THE DISCRETION IS GIVEN TO THE COURT TO CONDONE DELAY A ND ADMIT THE APPEAL IN ORDER THAT JUDICIAL POWER AND DISCRETION IN THAT BE HALF SHOULD BE EXERCISED TO ADVANCE SUBSTANTIAL JUSTICE .................. ...................... ...-THE REQUIREMENT OF EXPLANATION OF EVERY DAY'S DELAY DOE S NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE TAKEN. THE COURTS ARE R EQUIRED TO TAKE PRAGMATIC APPROACH WHILE INTERPRETING THE CONCEPT O F SUFFICIENT CAUSE. TOO MUCH RIGOR OF THE LAW IS NOT JUSTICE HUT THE DE NIAL OF IT II IS TO BE BORNE IN MIND THE MAXIM 'SUMUM JUS SUMMA INJURIA. EXTREME LAW IS EXTREME INJURY IN THE WAITER OF CONDONATION OF DEL AY THE DURATION OF DELAY IS INSIGNIFICANT THE COURT HAS TO TAKE INTO ACCOUN T WHETHER THERE IS ACCEPTABLE EXPLANATION OR PARDONABLE EXPLANATION.' (V) VENKATADRI TRADERS LTD V. C1T [248 ITR 68 1 (MAD)] 'THE DISCRETION SO VESTED IS REQUIRED TO BE EXERCIS ED IN A MANNER WHICH WOULD PROTECT AND PROMOTE THE JUST INTEREST OF THE ASSESSEE. THE POSITION OF THE ASSESSEE VIS-A-VIS THE REVENUE IS NOT STRICT LY ADVERSARIAL ALTHOUGH MORE OFTEN THAN NOT THAT IS THE MANNER IN WHICH TH E TWO PARTIES PERCEIVE THEIR ROLE. THE REVENUE IS NOT TO BE REGARDED AS IN TERESTED IN SCORING POINTS AGAINST THE ASSESSEE BUT ONLY IN THE JUST E NFORCEMENT OF THE PROVISIONS OF THE ACT. THE DISCRETION OF THE AUTHOR ITY THEREFORE ON THE FACTS OF THIS CASE WAS REQUIRED TO BE EXERCISED BY BEARING THE AFOREMENTIONED CONSIDERATIONS IN MIND.' (VI) URUDAVAN INVESTMENT & TRADING P. L TD. V. CJT-2 (ITA NO 3815/MUM/2009&ANR DATED 11 05.2010 '6. WE HAVE CONSIDERED THE ARGUMENT OF THE ASSESSEE S COUNSEL LEARNED DEPARTMENTAL REPRESENTATIVE. ON SEEING THE FACTS OF THE CASE THERE IS FORCE IN THE CONTENTIONS OF THE ASSESSEE T HAT THERE WAS ADVICE NOT TO CONTEST THE ORDER OF 263 ORIGINALLY MI ADVISE GI VEN BY THE CHARTERED ACCOUNTANT AND ACCORDINGLY THEY HAVE NOT PREFERRED THE APPEAL HUT IT WAS REALISED LATER THAT ASSESSEE SHOULD HAVE CONTESTED THE APPEAL SINCE SUBSTANTIAL JUSTICE IS REQUIRED HENCE THE APPEAL WAS PREFERRED BELATEDLY WITH A PRAYER FOR CONDONATION. EVEN THOUGH THE LEAR NED DEPARTMENTAL REPRESENTATIVE OBJECTED AND STATED THAT THE ASSESSE E HAS ACCEPTED THE ORDER U/S. 263 AND THERE IS NO CASE FOR CONDONING T HE BELATEDLY FILED APPEAL WE FIRE OF THE VIEW THAT THE DELAY IN FILIN G THE APPEAL IS FOR GOOD AND SUFFICIENT REASON HENCE THE SAME IS TO BE CON DONED. THE DIRECTOR HAS GIVEN TIN AFFIDAVIT ON RECORD SUPPORTED BY THE ADVICE GIVEN BY THE CHARTERED ACCOUNTANT ORIGINALLY. THE FACTS OF THE C ASE DEARLY FALLS WITHIN THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN TH E CASE OF AREVA T AND D INDIA LTD V. JCIT 287 ITR 55 (MAD). RELYING ON P RINCIPLES ESTABLISHED BY THE HON'BLE SUPREME COURT IN THE CASE OF MELA R AM & SONS VS. CIT' REPORTED IN 29 ITR 607 AND OTHER CASES RELIED UPON BY THE LEARNED COUNSEL WE ARE OF THE VIEW THAT ASSESSEE HAS GOOD AND SUFFICIENT ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 7 REASON FOR NOT FILING THE APPEAL IN TIME AND IN THE INTEREST OF JUSTICE THE APPEAL IS TO BE ADMITTED BY CONDONING THE DELAY. AC CORDINGLY THE DELAY IN FILING THE APPEAL IS CONDONED AND APPEAL IS ADMITTE D ' (VII) GUPTA RICE MILLS V. CST [1993 91 STC 208 (ALL )] 'IT IS PERTINENT OF MENTION THAT BY THE ASSESSMENT ORDER UNDER CHALLENGE THE ASSESSEE WAS SUBJECTED TO A DISPUTED TAX LIABIL ITY OF RS. 1 08 000. LOOKING TO THE STAKES INVOLVED IT IS DIFFICULT TO BELIEVE THAT THE ASSESSEE SHOULD HAVE FAILED TO FILE THE APPEAL WITHIN TIME F OR THE CIRCUMSTANCES AS BEYOND HIS CONTROL. IN SUCH MATTERS MONETARY SLAKES INVOLVED AND THE IMPORTANCE OF THE ISSUE RAISED IN M\F OPINION ARC NOT TOTALLY IRRELEVANT CONSIDERATIONS THAT MAY ALSO BE TAKEN NOTICE OF ALO NG WITH OTHER RELEVANT CIRCUMSTANCES IN EXERCISE OF JUDICIAL DISCRETION V ESTED WITH THE COURT OR AN AUTHORITY IN DEALING WITH THE QUESTION OR CONDON ATION OF DELAY. THE COURT OR AUTHORITY IS TO STRIKE A JUST AND EQUITABL E BALANCE BETWEEN THE RIGHTS SECURED BY THE RESPONDENTS AS A RESULT OF TH E EXPIRY OF THE PRESCRIBED PERIOD OF LIMITATION AND DEPRIVATION OF THE APPELLANT IN SEEKING ADJUDICATION OF HIS GRIEVANCE ON MERITS OF THE APPE AL FOR CAUSES BEYOND HIS REASONABLE CONTROL. IT IS MORE SO IN THE FISCAL STATUTES WHERE THE PROVISIONS RELATING TO APPEAL ETC CAN HARDLY BE EQU ATED TO LIS OR DISPUTE AS ARISES BETWEEN THE PARTIES IN A CIVIL LITIGATION 6. IN VIEW OF THE FACTS AND CIRCUMSTANCES EXP LAINED ABOVE AND THE RATIO LAID DOWN IN THE AFORESAID DECISIONS IT IS H UMBLY PRAYED THAT THE DELAY OF 191 DAYS IN FILING THE CAPTIONED APPEAL MA Y KINDLY BE CONDONED AND IT MAY BE DECIDED ON MERITS AND IN ACCORDANCE W ITH ]AW. NEEDLESS TO STATE THAT BY CONDONING THE DELAY THE REVENUE IS N OT GOING TO BE PREJUDICED IN ANY MANNER BUT IT WOULD ONLY ENABLE T HE HONBLE TRIBUNAL WELL ACCLAIMED FOR SPEEDY DISPENSATION OF JUSTICE TO DECIDE THE CONTROVERSY INVOLVED IN THE APPEAL IN A FAIR REASO NABLE AND JUDICIOUS MANNER. 4. THE LD. DR ON THE OTHER HAND STRONGLY OPPOSED CONDONATION OF DELAY IN FILING APPEAL AND SUBMITTED THAT THE AS SESSEE HAS CONSIOUS DECISION NOT TO FILE APPEAL AGAINST ORDER U/S 263 ON THE PRETEXT OF GETTING FAVORABLE ORDER FROM THE AO BU T WHEN IT CAME TO KNOW THAT THE LD. AO WAS DETERMINED TO MAKE ADDITIO NS AS PER THE DIRECTIONS OF THE PCIT IN RESPECT OF ISSUES CONSID ERED IN REVISION PROCEEDINGS THEN SUDDENLY STOOD UP AND FILED APPEA L WITH EXPLANATION THAT THERE WAS INCORRECT ADVISE RECEIVE D FROM THE CONSULTANT WHO HANDLED THE MATTER BEFORE THE PCIT . THE LD. DR FURTHER SUBMITTED THAT IF YOU GO THROUGH THE CONTE NTS OF CONDONATION APPLICATION FILED BY THE ASSESSEE IT IS SELF EXPLA NATORY AND SELF ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 8 ADMISSION BY THE ASSESSEE ITSELF AS PER WHICH ASSE SSEE HAS ADMITTED THE FACT THAT IT HAS TAKEN A CONSCIOUS DEC ISION NOT TO CHALLENGE ORDER OF THE PCIT BUT AT LATER STAGE WH EN THINGS ARE GOES OUT OF ITS CONTROL THEN COME OUT WITH AN EXPLANATI ON THAT DUE TO INADVERTENT LAPSE AND WRONG ADVICE OF A CONSULTANT THE APPEAL WAS NOT FILED. HE FURTHER SUBMITTED THAT IF YOU CONS IDER THE REASONS GIVEN BY THE ASSESSEE FOR NOT FILING THE APPEAL WIT HIN THE TIME SPECIFIED UNDER THE ACT IT IS VERY CLEAR THAT THIS IS THE CASE OF NOT ONLY DELIBERATE LAPSE BUT CRIMINAL NEGLIGENCE NOT OCCURRING OUT OF ANY CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSE E. INSOFAR AS AFFIDAVIT OF THE CONCERNED COUNSEL THAT HIS ADVISE WAS LATER FOUND TO BE INEPT IS A SAD COMMENTARY NOT ONLY ON THE PROFE SSIONAL COMPETENCY OF THE CONCERNED COUNSEL BUT IS ALSO A MANIPULATED DEVISE IN ORDER TO CIRCUMVENT THE LIMITATION. IN THIS CASE THE ASSESSEE HAS FAILED TO MAKE OUT ANY GOOD REASONS FO R NOT FILING APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT AND W HATEVER REASONS GIVEN BY THE ASSESSEE TO SEEK CONDONATION IS ONLY A N ATTEMPT TO CIRCUMVENT THE DELAY IN FILING THE APPEAL WHICH CA NNOT BE ACCEPTED. 5. WE HAVE HEARD BOTH THE PARTIES PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIE S BELOW ALONG WITH JUDICIAL DECISIONS CITED BY BOTH THE PARTIES. THE TRIBUNAL HAS POWERS TO CONDONE THE DELAY IN FILING APPEAL AFTER THE EXPIRY OF THE RELEVANT PERIOD REFERRED TO IN SUB SECTION (3) OR S UB SECTION (4) OF SECTION 253 OF THE I.T.ACT 1961 IF IT IS SATISFIE D THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITH IN THAT PERIOD. THE WORDS SUFFICIENT CAUSE HAS NOT BEEN DEFINED UNDER T HE ACT BUT VARIOUS COURTS HAVE INTERPRETED TO MEAN THAT THERE IS REASONS BEYOND THE CONTROL OF THE ASSESSEE WHICH PREVENTED THE ASSESEE TO ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 9 FILE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE AC T ARE CONSIDERABLE TO BE REASONABLE CAUSE. VARIOUS COURTS HAVE CONSIDE RED THE REASONS ADVANCED BY THE ASSESSEE FOR NOT FILING APPEAL WITH IN THE TIME ALLOWED UNDER THE ACT LIKE ILL HEALTH OF THE CONCE RNED ASSESSEE OR HIS COUNSEL MEDICAL EMERGENCY TRAVEL ABROAD OR AN Y OTHER PLACES DURING THE RELEVANT PERIOD OR SOME OTHER EMERGENCY SITUATIONS WHICH PREVENTED THE ASSESSEE TO ATTEND THE PARTICUL AR ISSUE OF FILING THE APPEAL BEFORE THE COURT OR TRIBUNAL. IF WE CON SIDER THE REASONS GIVEN BY THE ASSESEE FOR NOT FILING THE APPEAL WITH IN THE TIME PRESCRIBED UNDER THE STATUTE IN LIGHT OF THE REASO NABLE CAUSE AS HELD BY VARIOUS COURTS IN NUMBER OF CASES WE FIND THAT THE REASONS GIVEN BY THE ASSESSEE DO NOT COME UNDER THE AMBIT OF REAS ONABLE CAUSE FOR CONDONATION OF DELAY IN THE FILING APPEAL. AS PER THE AFFIDAVIT FILED BY THE ASSESSEE THE DELAY IS DUE TO INCORRECT ADVI CE RECEIVED FROM THE COUNSEL WHO APPEARED BEFORE THE PCIT IN 263 PR OCEEDINGS. IF WE GO THROUGH THE REASONS ADDUCED BY THE ASSESEE T HE ASSESSEE ITSELF HAS ADMITTED THE FACT THAT IT WAS UNDER THE BONA FIDE BELIEF THAT THE PCIT HAS SET ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) WITH A DIRECTION TO REDO THE ASSESSMENT AFRESH AND HENCE IT WAS UNDER THE BELIEF THAT IT MAY GET FAVORABLE RESULT FROM TH E AO. IN CONSEQUENTIAL PROCEEDINGS WHEN THE AO WAS DETERMI NED TO MAKE ADDITIONS ON THE ISSUES DISCUSSED BY THE PCIT IN IT S 263 PROCEEDINGS THEN THE ASSESEE HAS DECIDED TO FILE APPEAL WITH E XPLANATION THAT THE COUNSEL WHO APPEARED BEFORE THE PCIT HAS GIVEN INCORRECT ADVISE. NO DOUBT IN FEW CASES THE COURTS HAVE HE LD THAT ANY INCORRECT ADVICE GIVEN BY A PROFESSIONAL CAN BE A REASONABLE CAUSE FOR CONDONATION OF DELAY IN FILING THE APPEAL TAK ING INTO NOTE OF THE FACT THAT THE ASSESSEE AS WELL AS THE COUNSEL WAS UNDER THE BONA FIDE MISTAKEN OF A FACT THAT THERE IS NO NEED OF FI LING APPEAL OR NO ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 10 ACTION NEEDS TO BE TAKEN ON THIS ASPECT. IN THIS CA SE ON PERUSAL OF REASONS GIVEN BY THE ASSESSEE WE FIND THAT THE ASS ESEE HAS TAKEN A CONSCIOUS DECISION NOT TO FILE APPEAL ON THE PRE TEXT OF GETTING FAVORABLE RESULTS FROM THE AO IN CONSEQUENTIAL ASSE SSMENT PROCEEDINGS. BUT WHEN THE AO WAS DETERMINED TO MAK E ADDITIONS ON THE ISSUES IT HAS DECIDED TO FILE APPEAL. THERE FORE IT CANNOT BE SAID THAT THE PROFESSIONAL ADVICE GIVEN BY THE COUN SEL IS INCORRECT WHICH MAY BE CONSIDERED AS REASONABLE CAUSE FOR CON DONING THE DELAY IN FILING THE APPEAL. FURTHER THE PROFESSION AL ADVISE GIVEN BY ANY CONSULTANT CAN BE TERMED AS WRONG ADVISE IF THE SAID CONSULTANT ADVISED THE ASSESSEE AGAISNT THE SETTLED POSITION O F LAW OR CONTRARY TO THE PROVISIONS OF THE ACT BUT EVEN ADVISE IS GI VEN ON THE BELIEF THAT FURTHER ALTERNATIVE REMEDY IS AVAILABLE TO THE ASSESSEE TO CHALLENGE THE ACTION OF ANY AUTHORITY THEN THE SAM E CANNOT BE CONSIDERED AS WRONG ADVISE. IN THIS CASE AS ADMITT ED BY THE ASSESSEE IN ITS AFFIDAVIT THE CONSULTANT WHO REPR ESENTED THE CASE BEFORE THE AO WAS WELL AWARE OF THE LAW AND FACTS O F THE ASSESSEE CASE THAT IN CONSEQUENTIAL PROCEEDINGS BEFORE THE A O AGAINST ORDER OF THE PCIT CAN BE CHALLENGED AND HENCE NO NEED TO FILE APPEAL AGAISNT ORDER OF THE PCIT U/S 263 OF THE ACT. HAD I T BEEN A CASE OF THE ASSESSEE THAT AS PER THE ADVISE OF THE CONSULTA NT THERE IS NO APPEAL LIES AGAINST ORDER OF THE PCIT U/S 263 OF TH E ACT AND SUBSEQUENTLY IT WAS ADVISED BY ANOTHER COUNSEL THA T APPEAL LIES AGAINST ORDER OF THE PCIT PASSED U/S 263 OF THE I.T .ACT 1961 THEN IT CAN BE SAID THAT THE ADVISE GIVEN BY THE CONSULTANT IS WRONG AND ASSESSEE WAS ON BONAFIDE BELIEF. BUT FACT OF THE M ATTER IS THAT BOTH PARITES HAVE TAKEN CONSCIOUS DECISION NOT TO FILE A PPEAL BECAUSE THERE IS ALTERNATIVE REMEDY AVAILABLE TO THE ASSESE E EVEN IF THE ORDER OF THE PCIT IS NOT CHALLENGED. ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 11 6. NO DOUBT THE LEGISLATURE HAS CONFERRED POWER TO CONDONE DELAY BY ENACTING SECTION 5 OF THE LIMITATION ACT 1963 IN ORDER TO ENABLE THE COURTS TO RENDER SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATTERS ON MERITS. THE EXPRESSION SUFFICIENT CAU SE IN SECTION 5 IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY TH E LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUST ICE THAT BEING THE LIKE PURPOSE OF THE EXISTENCE OF THE INSTITUTIO N AS COURTS. THEREFORE COURTS SAID THAT WHEN SUBSTANTIAL JUSTIC E AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER THE C AUSE 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. AT THE SAME TIME THE COURTS HAVE ALSO HELD THAT IT IS FOR THE ASSESSEE OR THE PETITIONER TO EXPLAIN EV ERYDAYS DELAY IN FILING THE APPEAL I.E BECAUSE THE LAW OF LIMITATI ON IS ENSHRINED IN THE STATUE IS FOR THE GENERAL WELFARE OF THE LITIGANTS AND THE RULES OF LIMITATION ARE NOT MEANT TO DESTROY THE RIGHTS OF T HE PARTIES RATHER THE IDEAS IS THAT EVERY LEGAL REMEDY MUST BE KEPT ALIVE FOR A LEGISLATIVE FIXED PERIOD OF TIME. DELAY CAN BE CONDONE ONLY IN THOSE CASES WHERE THERE IS NO GROSS NEGLIGENCE OR DELIBERATE IN ACTION OR LACK OF BONA FIDE FROM THE PETITIONERS. SECONDLY THE ASSES SEE SHOULD OFFER ACCEPTABLE AND COGENT REASONS TO CONDONE DELAY. THE TEST WHETHER OR NOT CAUSE IS SUFFICIENT IS TO SEE WHETHER IT CO ULD HAVE BEEN AVOIDED BY THE PARTY BY THE EXERCISE OF DUE CARE AN D ATTENTION. IN THIS CASE ON PERUSAL OF DETAILS FILED BY THE ASSES SE WE FIND THAT THE ASSESSEE COULD HAVE AVOIDED THE SITUATION OF NOT FI LING APPEAL IF IT ACTED IN A BONAFIDE MANNER. THE ASSESSEE ON ONE SID E CLAIMS THAT IT WAS A CONSCIOUS DECISION NOT TO FILE APPEAL BECAUS E IT WAS UNDER THE BONAFIDE BELIEF THAT NO ACTION NEEDS TO BE TAKE N AT THIS POINT OF TIME AS THE PCIT HAS SET ASIDE APPEAL FOR FRESH AS SESSMENT AND ON ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 12 THE OTHER SIDE CLAIMS THAT IT WAS DECIDED TO FILE APPEAL BECAUSE THE LD.AO WAS DETERMINED TO MAKE ADDITIONS ON THE ISSUE S SUBJECTED TO 263 PROCEEDINGS. FROM THE ABOVE IT IS ABUNDANTLY C LEAR THAT BELATED FILING OF APPEAL IS AN AFTERTHOUGHT AND IT STRUCK TO THE MIND OF THE ASSESSEE ONLY AFTER IT CAME TO KNOW THAT IT IS NOT GETTING ANY FAVORABLE RESULT FROM THE LD.AO. THEREFORE WHEN TH E ISSUE OF CONDONATION OF DELAY IN FILING OF APPEAL COMES IT IS FOR THE ASSESSEE TO PROVE BEYOND DOUBT THAT IT WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVER AND ALSO THERE IS A REASON W HICH PREVENTED THE ASSESSE FROM FILING APPEAL WITHIN THE TIME ALLO WED UNDER THE ACT. THE REASONS SHOWN BY THE ASSESSEE ARE NEITHER SUFFI CIENT NOR BONAFIDE RATHER IT IS TELLTALE FROM THE FACTS ON R ECORD THAT THE ASSESEE HAD CONCIOUSLY TAKEN A DECISION NOT TO PREFER APPE AL AGASINT THE IMPUGNED ORDER PASSED UNDER SECTION 263 OF THE ACT. IF ASSSSEE DECIDED TO ABANDON HIS RIGHT TO APPEAL HE CANOT BE PERMITTED TO PURSUE THAT REMEDY AGAIN AFTER CONSIDERABLE LAPSE O F TIME ULNLESS THE REAONS ARE BONAFIDE. FINALITY OF AN ORDER CANNO T BE TINKERED WITH AT THE WHIMS OF A PARTY. WE THEREFORE ARE OF THE CONSIDERED VIEW THAT THE REASONS GIVEN BY THE ASSESEE FOR NOT FILIN G APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT DOES NOT COMES UNDER TH E REASONABLE CAUSE AS PROVIDED UNDER THE ACT OR AS EXPLAINED BY THE VARIOUS COURTS AND HENCE WE REJECT THE APPLICATION FILED B Y THE ASSESEE FOR CONDONATION OF DELAY IN FILING APPEAL. 7. COMING TO CASE LAWS RELIED UPON BY THE ASSESSEE. THE ASSESSEE HAS RELIED UPON VARIOUS JUDICIAL PRECEDENT S INCLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS MST KATIJI AND OTHERS 167 ITR 471. WE FIND THAT THE FACTS OF THE CASE CONSIDERED BY THE HONBLE SUPREME COURT THE ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 13 DELAY IS ONLY FOUR DAYS. UNDER THOSE FACTS THE HON BLE COURT CAME TO THE CONCLUSION THAT WHEN DELAY IN FILING APPEAL HA S BEEN EXPLAINED WITH SUFFICIENT REASONS THE HIGH COURT SHOULD HAVE CONDONED THE DELAY ON THE GROUND THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATION ARE PITTED AGAINST EACH OTHER THE CA USE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFFRED. THE ASSESSE HAS A LSO RELIED UPON VARIOUS JUDICIAL DECISION INCLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF N.BALAKRISHNAN VS M.RAMAMURTH I 1998 7 SCC 123. WE FIND THAT HONBLE COURT HAS HELD THAT THE W ORDS SUFFICIENT CAUSE U/S 5 OF THE LIMITATION ACT SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. INSOFAR AS OTHER CASE LAWS ARE CONCERNED ALTHOUGH THERE ARE CERTAIN JUDGMENTS WHICH CONSIDERS WRONG ADVICE GIVEN BY THE COUNSEL I S COMES UNDER SUFFICIENT AND REASONABLE CAUSE BUT ON PERUSAL OF REASONS GIVEN BY THE ASSESSE WE FIND THAT THE ADVICE GIVEN BY THE C OUNSEL WAS NOT CONSIDERED TO BE INCORRECT BECAUSE THE ASSESSEE HA S TAKEN CONSCIOUS DECISION NOT TO FILE APPEAL ON THE BONAFI DE BELIEF OF GETTING FAVORABLE ORDER FROM AO. THEREFORE THE CASE LAWS R ELIED UPON BY THE ASSESSE IS NOT CONSIDERED. 8. COMING BACK TO THE CASE LAWS RELIED UPON THE LD. DR. THE LD. DR HAS RELIED UPON VARIOUS JUDICIAL PRECEDENTS INC LUDING DECISION OF ITAT BANGALORE BENCH IN THE CASE OF SHRI B. SURYA KUMAR VS ITO (2015) 43 CCH 0193 BANG. TRIB. WE FIND THAT THE TRI BUNAL AFTER CONSIDERING VARIOUS DECISIONS OF COURTS INCLUDING HONBLE APEX COURT IN THE CASE OF MST KATIJI VS COLLECTOR OF LAN D ACQUISITION (SUPRA) HELD THAT THE REASONS GIVEN BY THE ASSESSEE IN LIG HT OF WRONG PROFESSIONAL ADVICE GIVEN BY THE COUNSEL CANNOT BE CONSIDERED AS ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 14 SUFFICIENT AND REASONABLE CAUSE FOR DELAY CONDONATI ON OF FILING APPEAL. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE A S UNDER:- 5.1 WE HAVE HEARD BOTH PARTIES AND PERUSED AND CAR EFULLY CONSIDERED THE MATERIAL ON RECORD INCLUDING THE JUDICIAL DECI SIONS CITED. THE HON'BLE APEX COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATA BAI BABURAO PATIL V SHANTARAM BABURAO PATIL & ORS (2002) 253 ITR 798 HA S HELD THAT WHILE EXERCISING DISCRETION DISTINCTION SHOULD BE MADE B ETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS WHICH MAY DESERVE A LIBERAL APPROACH. THE EXERCISE OF DIS CRETION THEIR LORDSHIPS OBSERVED WOULD DEPEND ON THE FACTS OF EA CH CASE AND NO HARD OR FAST RULE CAN BE LAID DOWN IN THIS REGARD. IN TH E ABOVE CITED CASE THE APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL WAS 7 DAYS. IN THE CASE OF GANGA SAHAI RAM SWARUP V ITAT (2004) 271 IT R 512 (ALL) THE DELAY WAS OF 12 DAYS IN FILING THE APPEAL AND IT WA S HELD THEREIN THAT A LIBERAL VIEW OUGHT TO BE TAKEN AS THERE WAS A DELA Y OF ONLY A VERY SHORT PERIOD. EVEN IN THE LAND MARK DECISION ON THE ISSUE OF CONDONATION COLLECTOR LAND ACQUISITION V MST KATIJI (SUPRA) C ITED BY THE ASSESSEE WHEREIN THE HON'BLE APEX COURT LAID DOWN THAT COURT S SHOULD HAVE A LIBERAL AND PRACTICAL APPROACH ITA NOS.1678 TO 1681 /BANG/2013 B. SURYA KUMAR IN EXERCISING ITS DISCRETIONARY POWERS OF CON DONATION OF DELAY THE DELAY WAS OF 4 DAYS. 5.2 ACCORDING TO THE ASSESSEE AFTER THE IMPUGNED OR DERS OF THE LEARNED CIT(A) DT.21.3.2012 WERE SERVED ON THE ASSESSEE ON 9.5.2012 THE ASSESSEE MADE AN APPLICATION UNDER SECTION 154 OF THE ACT DT.14.5.2012 TO THE CIT (APPEALS) FOR RECTIFICATION OF HIS ORDER S. THE LEARNED CIT(A) BY ORDER DT.9.7.2013 DISMISSED THE ASSESSEE'S APPLICAT ION. SUBSEQUENT THERETO THE ASSESSEE FILED THESE APPEALS BEFORE TH E TRIBUNAL ON 4.12.2013. FROM THE AVERMENTS MADE IN PARAS 9 & 10 OF THE PETITION FOR CONDONATION OF DELAY WE ARE OF THE OPINION THAT NOT ONLY THE SUBMISSIONS ARE MERELY SELF-SERVING STATEMENTS THE VERACITY OF WHICH ARE NOT ESTABLISHED BUT ALSO THERE IS AN INORDINATE DELAY O F 515 DAYS IN FILING THE APPEAL. THE ASSESSEE IN ITS AVERMENTS HAS NOT MADE OUT OF A CASE THAT THERE WAS REASONABLE CAUSE WHICH BEING BEYOND THE C ONTROL OF THE ASSESSEE PREVENTED HIM FROM FILING THE APPEALS IN TIME BEFORE THE TRIBUNAL. THE DELAY CANNOT BE CONDONED MERELY BECAU SE THE ASSESSEE'S CASE CALLS FOR SYMPATHY OR MERELY OUT OF BENEVOLENC E. FOR THE EXERCISE OF DISCRETION IN CONDONING THE DELAY IT MUST BE ESTAB LISHED BEYOND THE SHADOW OF DOUBT THAT THE ASSESSEE WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE ON HIS PART. SUFFICIENT CAUSE AS ITA NOS .1678 TO 1681/BANG/2013 B. SURYA KUMAR CONTEMPLATED IN THE L IMITATION PROVISIONS MUST BE A CAUSE WHICH IS BEYOND THE CONT ROL OF THE PARTY. IN THE CASE ON HAND THE FACTUAL MATRIX IN OUR VIEW CLEARLY ESTABLISHES THAT THE DELAY WAS DUE TO THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE WHICH COULD HAVE BEEN AVOIDED BY THE ASSE SSEE IF HE HAD EXERCISED DUE CARE AND ATTENTION. THEREFORE IN OUR OPINION IN THE FACTUAL ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 15 MATRIX OF THIS CASE THERE EXISTS NO SUFFICIENT AND REASONABLE CAUSE FOR THE INORDINATE DELAY OF 515 DAYS IN FILING THE APPEALS FOR ASSESSMENT YEARS 2002-03 TO 2005-06 BY THE ASSESSEE. IN COMING TO TH IS FINDING WE DRAW SUPPORT FROM THE DECISIONS OF THE HON'BLE APEX COUR T IN THE CASE OF MST KATIJI (SUPRA) VEDABAI ALIAS VAIJAYANATABAI BABURA O PATIL (SUPRA) OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF GANGA S AHAI RAM SWAROOP (SUPRA) AND OF THE ITAT CHENNAI BENCH (THIRD MEMBE R) IN THE CASE OF JCIT V TRACTORS & FARM EQUIPMENTS LTD. (2007) 104 I TD 149 (CHENNAI) (TM). THE CASES CITED BY THE ASSESSEE OF VARIOUS CO URTS AND OF THE CO- ORDINATE BENCHES OF THIS TRIBUNAL (SUPRA) HAVE BEE N DULY CONSIDERED AND WITH DUE RESPECTS WE FIND THE FACTUAL MATRIX DIFFER ENT THEREIN. WE HAVE CONSIDERED THE FACTUAL MATRIX OF THIS CASE TO REACH THE FINDING THAT THERE EXISTED NO SUFFICIENT AND REASONABLE CAUSE FOR THE INORDINATE DELAY OF 515 DAYS IN FILING THE APPEAL AS THE ASSESSEE HAS ALSO NOT BEEN ABLE TO ESTABLISH THAT HE WAS ITA NOS.1678 TO 1681/BANG/201 3 B. SURYA KUMAR PREVENTED BY SUFFICIENT CAUSES BEYOND HIS CON TROL FROM FILING THESE APPEALS ON TIME. IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW THAT IN THE CASE ON HAND THE CAUSE OF SUBSTANTIAL JUSTICE WOUL D NOT BE SERVED BY CONDONING THE INORDINATE DELAY OF 515 DAYS IN FILIN G THESE APPEALS FOR WHICH NO COGENT REASONS HAVE BEEN GIVEN. WE ACCORDI NGLY REJECT THESE PETITIONS FOR CONDONATION OF DELAY FOR ASSESSMENT Y EARS 2002-03 TO 2005-06. CONSEQUENTLY THE ASSESSEE'S APPEALS FOR A SSESSMENT YEARS 2002-03 TO 2005-06 ARE NOT ADMITTED FOR ADJUDICATIO N ON MERITS AND ARE DISMISSED IN LIMINE. 9. IN THIS VIEW OF THE MATTER AND CONSIDERING THE F ACTS AND CIRCUMSTANCES OF THIS CASE WE ARE OF THE CONSIDERE D VIEW THAT THE REASONS GIVEN BY THE ASSESSEE IN LIGHT OF AFFIDAVI T OF THE COUNSEL THAT DUE TO INCORRECT ADVICE THE APPEAL COULD NOT BE FI LED WITHIN THE TIME ALLOWED UNDER THE ACT CANNOT BE CONSIDERED AS SUFFI CIENT AND REASONABLE CAUSE FOR CONDONATION OF DELAY IN FILING APPEAL AND HENCE WE REJECT CONDONATION APPLICATION FILED BY T HE ASSESSEE AND DISMISSED APPEAL. 10. SINCE WE HAVE DISMISSED THE APPEAL ON LIMITATI ON THE OTHER GROUND TAKEN BY THE ASSESSEE ON MERITS OF THE ISSUE S BECOMES ACADEMIC IN NATURE AND DOES NOT REQUIRE SPECIFIC AD JUDICATION AT THIS POINT AND HENCE WE DISMISSED OTHER GROUNDS TAKEN O N MERITS BY THE ASSESSE AS INFRUCTUOUS. ITA NO.7115/MUM/2018 ANEEKA UNIVERSAL PVT.LTD. 16 11. IN THE RESULT APPEAL FILED BY THE ASSESSEE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 /11/ 2019 SD/- ( SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 29 /11/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT. REGISTRAR) ITAT MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) MUMBAI. 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE. //TRUE COPY//