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TMI Blog2020 (2) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... s appeal is held to be barred by Limitation, having regard to Section 253(3) read with Section 253(5) of I. T. Act. Accordingly, the appeal is not admitted, and is dismissed in limine - Appeal of the assessee is dismissed. - IT Appeal No. 7042 (Delhi) Of 2014 - - - Dated:- 31-10-2019 - H.S. Sidhu , Judicial Member And Anadee Nath Misshra , Accountant Member Neel Kanth Khandelwal , Adv. for the Appellant. Sunjog Kapoor , Sr. DR. for the Respondent. ORDER Anadee Nath Misshra , This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-VI, New Delhi, [ Ld. CIT(A) , for short], dated 28.11.2013 for Assessment Year 2009-10. The grounds of appeal are as under: 1. That the Ld. CIT(Appeal) has erred in law and on facts in confirming the disallowance of deduction u/s 80IB(7) ₹ 20,62,069/- in respect of hotel at Delwara, Rajasthan. 2. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the disallowance of ₹ 54,84,341/- in respect of Jaipur Project. 3. That the Ld. CIT (Appeal) has erred in law and on facts in confirming the disallowance of ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department did not file an appeal against the order of the CIT(A) and the Company lost sight of filing an appeal to the Tribunal, It was after a considerable delay that it was realised that the Department has not filed an appeal with the Tribunal against the relief allowed by the CIT(A) and thereafter, the Company immediately took the matter of filing the appeal to the Tribunal; however, after a delay of 325 days. I further state that whatever stated hereinabove is true to the best of my own knowledge and belief and I believe the same to be true. Solemnly affirmed at Mumbai This 23nd October, 2018 B.1 The assessee also filed petition dated nil seeking condonation of delay in filing of the appeal, which is reproduced below: To The Hon'ble Members, A Bench, ITAT New Delhi Reg.: Boutique Hotels India (P.) Ltd. v. ACIT, Circle - 3(1), New Delhi Assessment year 2009-10 Petition for condonation, of delay Dear Sir(s), In connection with the above subject, it is submitted. that:- Appeals are to be filed within 60days of the date of service of order sought to be appealed against. The Hon'ble Bench may admit appeals after the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this order] seeking the condonation of delay in filing of this appeal. However, the Ld. Departmental Representative ( Ld. DR , for short) opposed the assessee's petition for condonation of delay in filing of this appeal. B.2.1 We have heard both sides patiently. We have also perused the materials on record carefully. On perusal of the aforesaid affidavit dated 23.10.2018 filed from the assessee's side, it is found that it contains assessee's version of the reasons for delay in filing of the appeal. We have noticed that the aforesaid affidavit dated 23.10.2018 has not been deposed before any competent authority. The affidavit has also not been made on oath before an authority competent to administer oath. Moreover, the affidavit has not been verified in any manner. In any case, the affidavit has not been made by Mr. Mohan Bagri (Director of assessee company) on the basis of his personal knowledge and information. Instead, it is based on hearsay, being based on the information received from Mr. Jayant Goel, the erstwhile Director of the assessee company. In view of these deficiencies and shortcomings, the affidavit filed from the assessee's side in support of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It is clear from the impugned order that the authorities concerned have given three reasons for not condoning the delay. (a) Affidavit of person who was dealing with the file, was not filed. (b) The relevant records were not produced before the authorities concerned. (c) Affidavit filed on behalf of the applicant was based on hearsay and no facts were true to the knowledge of the persons who filed the affidavit in support of the application for condonation of delay. It will be appropriate to refer to the findings recorded by the Ld. Tribunal in the impugned order, which reads as under: It is quite clear that the Ld. Departmental Representative himself asked time to produce the relevant affidavit of the relevant person, i.e., 'receipt clerk'. Even at the time of reference application no such 'affidavit' is available. The Income-tax Appellate Tribunal has given finding of fact and as such no question of law arises out of the finding of the Income-tax Appellate Tribunal. The reference application filed by the Revenue is accordingly dismissed. The Supreme Court of India in the case of Oriental Investment Co. Ltd. v. CIT [1957] 32 ITR 664, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys; on this basis alone; the appeal deserves to be dismissed in limine, being barred by limitation. Now, we come to whether there was, in respect of the remaining period of delay excluding the aforesaid 68 days, sufficient cause on the part of the assessee, within the meaning of section 253(5) of I.T. Act; for not presenting the appeal within time prescribed U/s 253(3) of I.T. Act. According to the Director of the assessee's company, the Department had not filed an appeal against the order of the CIT(A) and the company lost sight of filing an appeal to the Tribunal. It is further intimated from assessee's side that it was after a considerable delay that it was realized that the Department had not filed an appeal with the Tribunal against the relief allowed by the CIT(A) and thereafter, the Company immediately took the matter of filing of the appeal to the Tribunal. Thus, it is obvious that there was a conscious decision for not filing appeal within the time prescribed U/s 253(3) of I.T. Act. Admittedly, it was consciously decided at the assessee's end, to not file appeal, and to instead file the Cross Objection, if appeal was filed by the Revenue. A conscious decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsciously to not file appeal U/s 253(1) or 253(2) of I.T. Act, as the case may be, read with Section 253(3) of I.T. Act. The assessee's version seems to be fanciful and concocted; lacking in bonafides. Assuming, for the sake of a fuller discussion, (through it has not been stated so by the assessee) that the assessee intended to avoid the payment of appeal fess under Section 253(6) of I.T. Act by way of filing cross objection, instead of filing the appeal; even then, we must comprehensively reject and disapprove any attempt at evading the payment of statutory fee mandated by Section 253(6) of I.T. Act. Thus, in view of these facts, we find that elements of mala fides, ruse and recklessness are present in the case before us, even if it is accepted, for the sake of this discussion, that there was advice from assessee's earlier Counsel to not file appeal, and, to instead file cross objection. On further perusal of the records we find that there is also no explanation as to why there was considerable delay on the part of the assessee in realizing that Revenue had not filed the appeal in ITAT against the order of the Ld. CIT(A). This negligence was responsible for further delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Co. Ltd. v. Smt. Nirmala Devi [1979] 3 SCR 694; Lala Mata Din v. A. Narayanan [1970] 2 SCR 90; O.P. Kathpalia v. Lakhmir Singh (dead) [1984] 4 SCC 66; State of Nagaland v. Lipok AO [2005] 3 SCC 752; New India Insurance Co. Ltd. v. Smt. Shanti Misra [1975] 2 SCC 840; N. Balakrishnan v. M. Krishnamurthy AIR 1998 SC 3222; State of Haryana v. Chandra Mani [1996] 3 SCC 132; Special Tehsildar Land Acquisition v. K.V. Ayisumma [1996] 10 SCC 634; Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation [2010] 5 SCC 459; Improvement Trust v. Ujagar Singh [2010] 6 SCC 786; Balwant Singh (dead) v. Jagdish Singh [2010] 8 SCC 685; Union of India v. Ram Charan AIR 1964 SC 215; P.K. Ramachandran v. State of Kerala [1997] 7 SCC 556; Katari Suryanarayana v. Koppisetti Subba Rao [2009] 11 SCC 183; Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai [2012] 5 SCC 157; Vedabai @Vijayanatabai Baburao Patil v. Shantaram Baburao Patil [2001] 9 SCC 106; and B. Madhuri Goud v. B. Damodar Reddy [2012] 12 SCC 693. These aforesaid decisions, including Collector, Land Acquisition v/s Mst. Katiji (supra) on which the assessee has placed reliance, were considered by Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee because of clearly distinguishable facts. In Voltas Ltd. (supra) there was a delay of 26 days, which is much less than inordinate delay of more than 300 days in the case before us. Secondly, in Voltas Ltd. (supra) the delay had occurred due to misplacement and not tracing the original order in the office of the Counsel. However, there are no such facts in the case before us. Thirdly, in Voltas Ltd. (supra) the explanation and the reasons given in the affidavit did not give scope for any doubt as to bona fides. However, in the case before us, the bona fides are not free from doubt. As we noted earlier in the foregoing paragraph (B.2.1) of this order, there are elements of mala fides, ruse and recklessness in the case before us. Moreover, as held in Mt. Umma Kulsum v. Ghulam Rasul Khan Bugri AIR 1929 Sind 32; Maung Po Chein v. Po Tha AIR 1931 Rang 80; Nareshwer v. Chabildas AIR 1934 Nag 52; and in Ma Sein v. S.T.R.M. Tian AIR 1933 Rang 96, a pleader's gross carelessness affords no ground for condonation. It is well settled, that a legal adviser's mistake in order to justify condonation of delay, must be a bona fide mistake; for which reference may be made to Amrit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gligence or want of reasonable skill on the part of the lawyer concerned. At this stage, we may also refer to two orders of Hon'ble Delhi High Court, reported in Smt. Phool Sabharwal v. CIT 141 ITR 774 (Delhi) and Haro Singh v. Ajay Kumar Chawla 109 [2004] DLT 297. In the case of Smt. Phool Sabharwal (supra) it was held by Hon'ble Delhi High Court that a reference application filed beyond limitation period due to alleged error on the part of Counsel's clerk was not maintainable. In the case of Ajay Kumar Chawla (supra), request for condonation of delay was rejected and it was held by the Hon'ble Delhi High Court; referring to Babu Ram v. Devinder Mohan Kaura AIR 1981 Delhi 14, Kankala Gurunath Patro v. D. Dhanu Patro AIR 1984 Ori 173, and Jagannath Prasad v. Sant Hardasram Sevashram AIR 1978 All 250; as under: '6. .the Counsel must disclose the circumstances in which incorrect advice was given and it is not sufficient to make a perfunctory and genereal statement that the wrong advice was given bona fide .. . In the case of Babu Ram v. Devinder Mohan Kaura (supra) it was so held by Hon'ble Delhi High Court that: 31. There is no formula that per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay; that a legal advisor's mistake, in order to justify condonation of delay must be a bonafide mistake; that mistaken advice given by a lawyer negligently and without due care is not sufficient cause; that the mistake should be such, which even a skilled legal advisor, well-versed and experienced in law might make that mistake; that, the fact that there was lawyer's wrong advice has to be proved by the party seeking condonation of delay; and that the Counsel must disclose the circumstances in which incorrect advice was given and, it is not sufficient to make a perfunctory and general statement that wrong advice was given bonafide. In any case, as noted by us in foregoing paragraph (B.2.1) of this order, the affidavit filed from the assessee's side in support of request for condonation of delay in filing of this appeal, lacks credibility.Hence, the assessee's appeal is held to be barred by Limitation, having regard to Section 253(3) read with Section 253(5) of I. T. Act. Accordingly, the appeal is not admitted, and is dismissed in limine. D.1 By way of abundant caution, we wish to clarify that we have expressed no opinion on the merits of the various groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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