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TMI Blog2013 (8) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any reasonable ground. CIT(A) has rightly dismissed the application for condonation of delay and thereby appeal of the assessee being barred by limitation. The finding of the learned CIT(A) in respect of the matter is hereby upheld. Since the order of the CIT(A) on limitation point upheld it is not necessary to adjudicate on other issue on merit as the same is rendered academic - appeal of the assessee is hereby dismissed. - ITA No.:6488/Mum/2012 - - - Dated:- 17-5-2013 - Shri Sanjay Arora And Shri Sanjay Garg,JJ. For the Appellant : Mr. K Gopal For the Respondent : Mr. Manoj Kumar ORDER Per Sanjay Garg, JM :- The present appeal has been filed by the assessee against the order of the learned CIT(A) dated 11.09.2012 relevant to A.Y. 2007-08. The main ground of appeal has been raised against the confirmation of addition by the CIT(A) of Rs.54,55,019/- made by the AO on account of unproved sundry creditors. During the pendency of appeal, the assessee has taken additional ground against the dismissal of appeal by the CIT(A) being barred by limitation. 2. The brief facts of the case are that the assessee- HUF, filed its return of income for the relevant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made clear to him that in the absence of furnishing of full details the assessment would be completed on the basis of the material on record. Inspite of that, the required details were withheld by the assessee, which lead to the addition. The learned CIT(A) further observed that the appeal had been filed on 15.11.2010 whereas the assessment was completed on 21.12.2009. The assessment order was served on the assessee on 12.01.2010. The appeal should have been filed before 12.02.2010 and, thus, there was a delay of nine months and four days (278 days). The learned CIT(A) further observed that as per the death certificate of Smt. Gangubhai Baburao Shinde- mother of the Karta of the assessee- HUF, the date of her death was 23.12.2008 whereas the assessment itself was completed almost a year after her death. The claim of the assessee that performing last rites and rituals was the cause of delay in filing of appeal was found wrong and false. The learned CIT(A) observed that the Karta of the assessee- HUF might have performed the last rites in December 2008 itself, whereas the assessment was completed in the month of December 2009. The learned CIT(A) further observed that the assessee f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in filing the appeal before him. The learned CIT(A) found that the mother of the Karta of the HUF had expired almost one year earlier from the date of completion of assessment, and thus he concluded that there was no sufficient cause for condonation of the delay. The assessee now has taken a new plea that in fact there was negligence and inaction on the part of his tax consultant Mr. J.N.Daya, when the said consultant is no more in this world. Before us it has been mentioned in the affidavit that the assessee had received assessment order on 12.01.2010 and the same was given to the tax consultant for further course of action. However, there is not mention in the affidavit that the assessee had ever instructed his representative to file an appeal before the CIT(A). Even the assessee thereafter never enquired from the consultant as to what action had been taken by him after receipt of the said assessment order from the assessee. The assessee never enquired whether any appeal was prepared, drafted or the signatures of the karta were required for filing of the appeal. The requirement of law is that it is to be looked into as to out of reasons given by the applicant for condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miserably failed to do so. Even otherwise the negligence on the part of the counsel without any sufficient reason is not a ground for condonation of delay. Hon'ble Punjab Haryana High court in the case of Krishan Dev Dhiman vs. Mahesh Bhatia and others [RSA No.3142 of 2006 decided on 08.04.2008] has observed as under:- "Even otherwise, the only ground for condonation of delay is contained in paragraph 3 of the application wherein it is stated that the brief was misplaced by the clerk of the counsel who has now left the service and on finding the file, the same has been filed now. Even otherwise, no details are given as to when the Clerk of the counsel has misplaced the file, when he had left the service of the counsel for the applicant- appellant and when the file has been found. Learned counsel appearing for the applicant-appellant has stated that it was due to the fault of the Clerk that delay has been caused. I am not impressed by this argument. It is the duty of the party also to follow his/her case. It cannot be believed that the applicant- appellant has not bothered to enquire about his case for a period of more than four years. If he has not taken any interest, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time." In the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd. (2004) 3 Supreme Court Cases, 250 the Hon'ble Supreme Court has held as follows:- "21............. It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation commencing from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court 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 in a valid or competent appeal." In similar circumstances, in the case of Bhagwna Vs. Tara Chand and others (CM No.11634 -C of 2007 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no merit in the case of the assessee for condonation of delay. The assessee has relied upon the following authorities in support of its contentions:- Collector, Land Acquisition vs. Katiji 167 ITR 471 (SC) Improvement Trust vs. Ujagar Singh (2010) 6 SSC 786 (SC) However, it may be observed that in the authorities relied upon by the assessee, it has been held that the delay may be condoned by the courts when the same is non deliberate and when there is no gross negligence, inaction or want of due diligence or bona fide on the part of the assessee or his representative, but the case in hand, as we have observed above, is of gross negligence, inaction, want of due diligence and even no bona fides are attributable on the conduct of the assessee and as such the facts of the present case are quite distinguishable and the law cited by the assessee is not applicable in the present case. Rather the law otherwise is against the assessee as we have discussed above. The assessee has to suffer for not filing appeal within the period of limitation when it was not prevented from any sufficient cause, as the substantive right accrued in favour of the other party cannot be taken away ..... X X X X Extracts X X X X X X X X Extracts X X X X
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