BHARAT R. RUIA ( HUF),MUMBAI vs. ASST CIT CIR 16(2), MUMBAI

Aforesaid appeal by assessee for Assessment Year [AY] 2004-05 contest the order of Ld. Commissioner of Income-Tax (Appeals)-16, Mumbai, [CIT(A)], Appeal No.CIT(A)XVI/ACIT16(2)/156/06-07 dated 28/08/2008 qua confirmation of action of Ld. AO in treating intra-day Bharat R. Ruia (HUF) Assessment Year-2004-05 trading from Shares as speculative trading instead of business loss as claimed by the assessee.

None has appeared for assessee and no valid adjournment application is on record. The perusal of order sheet entries reveals that the assessee has remained negligent in attending the hearing even during the last occasion. Left with no option, we proceed to dispose-off the same in terms of Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 on the basis of material available on record and after hearing Ld. Departmental Representative, Shri Arun Kumar Singh Chaudhary who raised a preliminary issue by pointing out that the appeal deserves to be dismissed since the same is time barred by as many as 1939 Days without there being any sufficient cause. 3. Upon perusal of record, we find that the registry has noted a delay of 1939 days in filing of instant appeal before the Tribunal. The date of communication of the order in Form No. 36 has been mentioned as 28/08/2008 whereas the appeal has been filed on 17/02/2014, which prima facie reveals that there is a huge delay of more than 5 years. 4. The assessee has filed a condonation petition primarily on the strength that the dealing Chartered Accountant was busy with the search matter of the assessee and over looked to file the appeal before the Tribunal and therefore the delay has occurred due to mistake of the dealing Chartered Accountant of the assessee and the same was a bona fide mistake. 5. We have given a thoughtful consideration to the condonation petition and supporting documents as filed in support of the same. Upon perusal of factual matrix, we find it difficult to acquiesce to the pleas Bharat R. Ruia (HUF) Assessment Year-2004-05 raised by the assessee in support of condonation of an inordinate delay of more than five years. As per assessee’s version, the assessee was subjected to search proceedings during 2008 and was required to file the returns for various assessment years. In such a scenario, it is difficult to accept the fact that the dealing Chartered Accountant, due to an inadvertent error, failed to agitate the same before the Tribunal particularly in the light of the fact that the departmental appeal for the impugned AY was filed before the Tribunal during November, 2008 and the same was disposed-off during March, 2010. Further, similar issue arose in assessee’s own case for immediately preceding AY 2003-04 and the assessee’s appeal was disposed-off by the Tribunal during April, 2009. In these circumstances, it is difficult to accept the fact that the appeal could not be filed due to oversight or due to an inadvertent error of the dealing Chartered Accountant. As per laws of limitation, the assessee is expected to explain each day of delay and as per settled legal proposition, the explanation should establish the bona fide of the assessee before seeking condonation of delay. The surrounding circumstances and the conduct of the assessee do not convince us to condone the inordinate delay in terms of Section 253(5) and therefore, we dismiss the appeal on preliminary issue of condonation of delay.

Since the appeal has been dismissed on the ground of limitation, delving into the same on merits become merely academic in nature and therefore, not dealt with.

The appeal stand dismissed. Order pronounced in the open court on 10th October, 2018.