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Income Tax Appellate Tribunal, MUMBAI “G” BENCH, MUMBAI
Before: SHRI PRADIP KUMAR KEDIA & SHRI PAWAN SINGH
आदेश/O R D E R PER PRADIP KUMAR KEDIA - AM:
The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-28, Mumbai, (‘CIT(A)’ in short), dated 10.06.2016 arising in the assessment order dated 28.03.2013 passed by the Assessing Officer (AO) under s. 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2010-11.
[ITO vs. M/s. Raksha Construction] A.Y. 2010-11 - 2 -
2. The grounds of appeal raised by Revenue read as under:
“1. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in upholding the action of AO for considering the fact that Mobilization Advance of Rs.27,75,669/- is treated as loans and liability and not as revenue income as per contract, relevant proofs of which was submitted, and even if AO wants to consider it as income we will have to delete the same amount from preceding assessment years as it was considered as income and relevant proofs have been submitted for the same.
2. On the facts and in the circumstances of the case, the ld. CIT(A) erred in considering that the assessee had already submitted the relevant proofs that we have not received as Rs.7,75,775/- from M/s Emersons Process Management. We would like to request the AO to get the details from the party.
3. On the facts and in the circumstances of the case, the ld. CIT(A) erred in observing and in holding that the disallowance of expenses to be deleted because we submit the relevant bills to the client on regular interval basis but client always fail to make payment and not paid to us as per agreement terms and conditions. Hence we consider only receipts and payments as received and paid by us on actual basis, as we follow cash system of accounting.
4. On the facts and in the circumstances of the case, the ld. CIT(A) erred in observing and in holding that we have made payment to laborers after making proper precautions as per provisions of income tax. We collected Pan no., and also have deducted TDS as per rules of Income Tax Act, 1961. Hence, the same cannot be disallowed.”
3. When the matter was called for hearing, none appeared on behalf of the assessee. It is seen from the order sheet that multiple opportunities were given to the assessee one after other to defend its appeal, however, the assessee has chosen to avoid the proceedings before the Tribunal. Therefore, left with no alternative the matter is proceeded ex parte in the absence of the assessee.
It is borne out from the record that the assessee has filed the appeal belatedly before the Tribunal by nearly 608 days. The assessee has sought to support the delay by placing an affidavit. The contents of the affidavit read as under: [ITO vs. M/s. Raksha Construction] A.Y. 2010-11 - 3 - “AFFIDAVIT IN SUPPORT OF MISCELLANEOUS APPLICATION FOR CONDONATION OF DELAY I, Shri Mohd Hussain Habib Pathan, aged 58 years, an Indian inhabitant, residing at Mumbai partner of Raksha Construction do hereby state on solemn affirmation as under 1. The Assessee has filed the appeal against the order of A.Y. 2010-11 dated 10.06.2016 of ld. CIT(A), Mumbai in confirming the action of AO.
The applicant submits that the applicant has mentioned the grounds which were beyond the control of the assessee in filing the appeal before the Hon’le Tribunal. The applicant was vigilant over the matter but he could not file the appeal before the Tribunal for the reasons mentioned in the miscellaneous application.
In support of the contention and for condonation of delay the assessee refer to and rely upon the decision of the Hon’ble supreme Court in the case of Collector Land Acquisition, … vs Mst. Katiji & Ors on 19 February, 1987, Equivalent citations: 1987 AIR 1353, 1987 SCR (2) 387 and submits that the delay of 608 days be condone to meet the ends of justice. Whatever is stated hereinabove are true and correct to the best o my knowledge and belief and nothing has been suppressed in the petition, as well as in the affidavit. Solemnly affirmed on this 03rd day of March, 2017. At Mumbai For Raksha Construction M. H. H. Pathan Partner (Mohd Hussain Habib Pathan) Deponent”
On a perusal of the affidavit, it is not possible to envisage the reasons seeking condonation of delay. A reference has been made to some undated miscellaneous application which is not there on record. Therefore, it is difficult to understand the cause for filing appeal belatedly beyond the statutory time limit after a considerable lapse. Needless to say, such inordinate delay causes serious prejudice to the other side in defending its case with the efflux of time. The delay of 608 days is in the league of extraordinary. The assessee is expected to explain everyday delay and does not have any indefeasible right to claim condonation. Nondescript and cryptic reasons cannot be appreciated while adopting liberal approach in such matter. As noted earlier, assessee has exhibited further laxity in not attending the appeal on the appointed date. The assessee cannot escape the burden [ITO vs. M/s. Raksha Construction] A.Y. 2010-11 - 4 - of proof to support the purported cause for delay. Therefore, it is difficult for or to endorse a flippant affidavit of self serving nature in justification of lackadaisical attitude of the assessee. Therefore, in the absence of any merit in the petition for condonation of delay, we decline to entertain the request of the assessee on this score. The appeal of the assessee is accordingly dismissed owing to bar of limitation is provided in Section 253(3) of the Act.
In the result, the appeal filed by the assessee is dismissed in limine.
This Order pronounced in Open Court on 06/06/2019
Sd/- Sd/- (PAWAN SINGH) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai: Dated 06/06/2019 True Copy S. K. SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file.