SHREE SWAMI SAMARTH TRADING CO. LT,MUMBAI vs. CIT (A)-13, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR, AM ITA No.3551/Mum/2015 ITA No.3552/Mum/2015 (A.Y:2009-10)

Shree Swami Samarth Trading Commissioner of Income Tax, Circle-13 Pvt. Ltd. 1Gr Floor, patel house, DR E Mittal Court Nariman Point Borges RD Opp K.E. M Hospital Mumbai-400 021 Vs. Parel Mumbai-400 012 PAN No. AALCS3944D .. Appellant Respondent Assessee by .. None Revenue by .. Shri Awunsingh Ginsan, CIT DR Date of hearing .. 09-05-2017 Date of pronouncement .. 31-05-2017 O R D E R PER MAHAVIR SINGH, JM:

These two appeals by the assessee are arising out of the different orders of CIT(A)-14, Mumbai, in appeal No. CIT(A)-14/IT-266 & 268/13-14, both, dated 31-03-2015. The Assessment was framed by ITO Ward-7(2)(3), Mumbai for the 2009-10 vide order dated 26-12-2011 under section 144 of the Income Tax Act, 1961 (hereinafter ‘the Act’). The penalty was levied by ITO Ward-7(2)(3) under section 271(1)(c) of the Act vide his order dated 27-06-2012.

ITA No.3551 & 3552/Mum/2015 Shree Swami Samarth Trading Pvt. Ltd.; (A.Y:2009-10)

“3.5. 1 have considered other plea also taken in the affidavit filed by the appellant for condonation of delay it is noted that same is signed by Managing Director Mr. Vilas C Gaokar, identified by Mr. Pramod Kumar Panda, advocate High Court and notarized by one Mr. M.H. Choudhary, Public Notary. The affidavit, says that he was facing many difficulties both legal, physical, and mental agony which had in fact affected him greatly and prevented him substantially to look into anything else. For this the payer has been made that same should be considered as reasonable cause for considering the period for condonation of delay. In fact there is no chronology of dates as is visible from point 7 of the application as it says that office was closed in January 2012 to August 2012, then it says that in September 2011 notice to vacate the premises was received and then in apple 2012 by staff left their jobs. Then in July 2012 the bank withdrew their term loan facility and then again going in reverse direction the appellant says that in July 2011 Bank recalled their CC and term loan facilities. Then it says that in January 2013 to March 2013 the director had to go for his knee operation and was resting for four months and sometimes he has to face warrant charge.

3.6 It is further noted that besides these pleas of legal, physical and mental agony, point no. 7 of the affidavit as reproduced above in toto nowhere mentions how the assessment order dated 26/12/2011 along with demand notice was received on 16/10/2012. It is also noted that appellant have not submitted any proof of having Page 2 of 18

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received the assessment order on 16/10/2012, that is after a gap of almost 10 months. In fact, there is no mention of this fact in this application filed for condonation of delay. It is interesting to note that even if it is presumed for a while that the appellant received the order after 10 months from the date of passing the order (if they are able to prove this fact, the delay of these 10 months could have been condoned), however here interestingly appellant have made the application by counting the period of delay by taking date of receipt of assessment order u/s 144 of the Act dated 26/12/2011 as on 16/10/2012, to calculate delay till 14/11/2013 i.e. the date when appeal has been filed and for this period of apparently delay of 364 days the appellant have given the reason that the director was having difficulties both legal, physical and mental agony.

3.7 I have duly considered all these facts apparently claimed by the appellant though without any supporting evidence to authenticate the dates. As the appellant have annexed the demand notice dated 09/10/2012, for the instant appeal, I have gone through this demand notice annexed with this order under section 144 of the Act and noted that same is a demand notice marked 'Rect. Number 21 /page 51/2012-13. It is also noted that same is somehow not the original demand notice but a copy of the original one. This makes it clear that said notices is not the one issued along with the assessment order but is in pursuance of rectification order done by serial number 21 on page 51 in the year 201213. I have also gone through the order passed under section 154 of the IT act by the AO on 9/10/2012 along with which this notice was issued. A reading of the same makes it clear that AO having found that while computing total income in para 9 of the assessment order u/s 143 (3) read with section 144 Page 3 of 18

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dated 26/12/2011 the total disallowances was erroneously taken as Rs. 14,50,33,676 /against the correct amount of Rs. 18,01,79,681/. The AO having found that computation was erroneously taken, he rectified the same. This order also mentions that the notice under section 154/155 of the act was issued suo moto to the assessee on 11/17/2012 to which also assessee has not replied. Thus it is coming out that the demand notice dated 9/10/2012 was consequent to order dated 9/10/2012 of rectification passed by the AU u/s 154 of the act, which was received by the appellant on 16/10/2012. It is also seen that in the case of appellant an order under section 271(1)(c) of the IT act, was passed on 27/60/2012. I have gone through the order also and noted that in that order also, the AO has clearly mentioned that assessee was given opportunity vide notice dated 29/5/2012 wherein case was fixed for hearing on 11/06/2012 and to that also assessee did not file any reply. Consequently, the AO disposed off by levying penalty under section 271 (1) (c). This penalty order along with notice dated 27/16/2012 was also issued and served upon the appellant. Against this also appellant have filed an appeal bearing number 266/13 - 14 on 14/11/13.

3.8 Thus, here the appellant have given wrong date of receipt of the assessment order to show that there is delay of only 364 days, which is evident from demand notice filed showing dt. 09/10/2012 and marked as one for rectification order u/s 154 of the Act passed by A.O. on 09.10.2012, meaning thereby that the demand notice for rectification order u/s 154 of the Act has been used claiming it as for order u/s 144 of the Act, by the appellant to justify the delay in filing the instant appeal against order u/s 144 of the Act, which is passed on Page 4 of 18

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26.12.2011. Obviously the notice dt. 9/10/12 is not the one issued with assessment order passed u/s 144 dt 26/12/2011. This has been done by the appellant to show delay of only 364 days, which is actually delay of more than 1 year and 10 months, to be precise the instant appeal is delayed by almost 677 days and not 364 In view of this the M.D. of the appellant company, when he appeared on 24/03/2015 only, in response to final notice dated 17/03/2015 issued and served to them, was asked to explain his this conduct of mentioning wrong date and filing wrong demand notice and was also asked why the affidavit should not be taken as one with wrong fact mentioning delay of only 364 days instead of justifying delay of actually 677 days. The appellants were also told that the reasons given like closure of the office for renovation from January 2012 to August 2012 are general pleas and specific dates are to be given to explain the delay with supporting documents. For the same, however, no reply has been given and no reasons have been furnished for the conduct of MD of the appellant company mentioning wrong date for receipt of assessment order and consequently reducing actual period of delay. In view of this the plea for condonation of delay is dealt on these admitted and undisputed facts when the very theory created by the appellant that they were undergoing difficulties and hence could not file appeal, which happened only because there advocate did not attend before the AO and hence they were totally unaware that such orders have been passed in their cases, is found totally baseless as is evident from the fact that not only assessment order, subsequently rectification order and further penalty order is have been passed in the case of appellant by the AO and that too after giving proper opportunities by notices issued and served to the address of appellant, before passing all these orders. The Page 5 of 18

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appellant have purposely not availed the opportunities given by notices which were duly served at their given addresses; as admitted in the affidavit also by the appellant. In any case if assessment order was not served, the same would have come unserved which is not the case here. Thus the appellant have tried to conceal the actual delay by filing an affidavit on wrong facts, to plead for condonation of delay in the instant appeal.

3.9. I have gone through various decisions available on the issue. in general the Hon’ble courts have decided that by tiling a delayed appeal the appellant does not derive any benefit and hence condonation of delay is a matter of discretion which should be used objectively in lust cases. It was so decided in the case of an Balaicrishnan vs. M Krishnamoorthy (1998) 7 SCC, 123 and again in case of a state of Andhra Pradesh vs. Venkatraman Chudava vs. Muramura Merchant (1986) 159 ITR 59 (AP), Concord of Indian insurance company limited vs. Sint. Nirmaladevi & Sons (1979) 118 ITR 507 (SC). However, in cases where the appellant have not come up clean and the reasons given are not based on facts, the delay cannot be condoned merely because of sympathy. It was so decided in the case of Mewa Ram (Deceased by L. Rs) &Ors. v. State of Haryana, AIR 1987 SC 45; State of Nagaland v. Lipok AO & Ors., AIR 2005 SC 2191; and D.Gopinathan Pith v. State of Kerala & Ann, AIR 2007 SC 2624. Recently in the case of Brijcsh Kr and others V. State of Haryana Hon'ble Supreme Court gave guidelines on condonation of delay deciding that the courts should not adopt an injustice oriented approach in rejecting the application for condonation of delay, however the court while allowing such application has to draw distinction between delay and inordinate delay for want of bona fides of inaction or negligence Page 6 of 18

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would deprive a party of the protection of section 5 of the limitation act 1963. Sufficient cause is a condition precedent for the exercise of discretion by the court for condoning the delay. Hon'ble Supreme Court have time and again held that when mandatory provision is not complied with and that delay is not properly satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately alter the cause of action had arisen, other persons cannot take benefit there of approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at of some diligent person. In that case Hon’ble Supreme Court alter considering the facts and circumstances did not condone the delay for inordinate delay of 10 years two months and 29 days, thus upholding the action taken by Hon'ble court of Haryana. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts. The law of limitation is enshrined in the legal maxim "Interest Reipublicae Ut Sit Finis Litium” (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. The Privy Council in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that "a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the judge cannot, Page 7 of 18

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on applicable grounds go beyond the same. Same was the decision taken in the case of Jagdish Lal and Others V.s State of Haryana (1996) 6 SCC 267 wherein it was observed by the Hon’ble court that the appellant kept on sleeping for the period and suddenly decided to file the appeal. Again Hon’ble High Court of Rajasthan & Others, (S.B. (Sales in the case of M/s. Binami Cement Limited Vs. State of Rajasthan & Others, (S.B. (sales Tax) Revision Petition No.556/2011) decided that delay in filing the appeal cannot be condoned for the reason that appellant failed to explain the specifically the delay for the particular period. The Hon'ble Court in that case referred the decision given by the Apex court in the case of Lanka Venkateswarlu Vs. State of Andhra Pradesh [(201)) 4 SCC 3631 and stated that the Hon’ble Supreme Court has held that the recommended liberal approach in considering the sufficiency of cause for condonation of delay in taking legal proceedings beyond statutorily prescribed limitation should not override the substantial law of limitation, specially when courts find no justification for the delay. It has been held that the courts, including the Supreme Court, no doubt have recommended liberal approach in considering applications for condonation of delay, yet the concepts such as Liberal approach, justice oriented approach and substantial justice cannot be employed to jettison the substantial law of limitation especially when on facts the authority before which application under sectiori 5 of Limitation Act is filed, finds no justification for the delay. It has been held that while considering the application under section 5 of the limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under section 5 of the Limitation Act has to be systematically Page 8 of 18

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exercised duly informed by reasons and that whims or fancies, prejudices or predilections cannot and should not form the basis of exercising the discretionary powers to condone delay. In the case of Oriental Aroma Chemical Industries Limited Vs. Gujarat Industrial Development Corporation [(2010) 5 SCC 4591 the Hon’ble Supreme Court has held that even while a liberal approach is desirable in condoning the delay of short duration, stricter approach is required to be applied in cases of inordinate delay. Then the Hon’ble Supreme Court in case of Binod Bihari Singh (supra), observed that as the petitioner company to overcome a bar of limitation appears took a false stand of filing review application on 1312-2000, the application for condonation of delay deserved dismissal.

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available on record, I am convinced that appellant have only tried to prolong the matter by just filing an appeal in the instant case, without having any supporting evidence for the plea taken in this appeal as well as for asking condonation of delay in filing the appeal itself. The plea taken is illusionary and not based on facts in the case. Thus, on these given facts, I am of the considered view that the delay in filing of the appeal cannot be condoned in absence of any specific reason. Though it is well accepted that no appellant derives any benefit by filing a delayed appeal, however the same should not be used as a tool, or an excuse to avoid and prolong and thus delay further consequent proceedings from the Department. Accordingly, in this case, where in it is noted that the appellant have not been able to explain the reason for delay for the entire period and rather have taken a general plea based on general reason and hence, following the ratio of decision cited supra, I am of the view that case law relied upon by the appellant in the case of collector of land acquisition versus Mst Katiz and others, 167 ITR 471 are not applicable on the facts, as it is coming out that the appellant have filed the appeal with half backed reasons which are not supported by facts in their case and hence the delay in filing the appeal is not condoned.

3.10 On these given facts where it is coming out clearly that the appeal has apparently shown that the appeal has been filed against the order passed under section 144 of the LT Act, dated 26/12/2011, along with notice of demand bearing the date 9/10/2012, which is a false claim made by the appellant, this quantum appeal filed by the appellant for assessment year 2009-10 bearing appeal number CIT(A)- 13/268/13-14, in which the appellant have taken total seven grounds in appeal and Page 10 of 18

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have filed statement of facts, (which for the sake of clarity are reproduced above already), I am of the considered view that the appeal filed and the payer made for condonation of delay in filing this appeal bearing appeal number 268/13-14, for the reason that they are not pertaining to the quantum matter i.e. assessment order dated 16/12/2011 passed u/s 144 of the 1.T Act involved in the case of appellant for assessment year 2009-10, cannot be entertained and hence this plea being not sustainable the delay cannot be condoned and hence is not condoned. Thus the plea taken to condone the delay, being totally unrelated, is not sustainable and accordingly is dismissed here with.

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evidence led by assessee before us, we find no infirmity in the order of CIT(A) and hence, the appeal of assessee is dismissed.

“a) Additions under section 68 (increase in paid-up share capital) Rs.4,00,00,000/-

b) Addition under section unexplained cash

credit Rs.8,12,16,818/-

c) Disallowance of bonafide depreciation

Rs.1,19,08,429/-

d) Ad-hoc @25% disallowance of expenses

Rs.4,70,54,434/-”

“3.6 I have duly considered the facts and the affidavit as reproduced above, filed by the appellant in the case with the plea of condoning the delay of 499 days in the instant appeal. A reading of the affidavit make s it clear that appellant have stated that this all h appended due to M.D. having physical and mental stress, however they have not been able to pinpoint that particular period. IN absence of any particular reason for the delay of a particular period, the appeal which is barred by law of limitation act, cannot be entertained. The appellant was required to furnish the specific reasons for delay for each and every day i.e. specific period, which is wanting in this affidavit dated 14/11/2013 made with prayer for condonation of delay of 499 days. Same has not been

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done despite behind given repeated opportunities by notices served in their case, as the appellant have remained silent and not fled any submissions in support of the plea taken by them in the instant appeal.

3.7. In this case admittedly, the appellant have been receiving notices and orders at their address but for the reason best known to them, the appellant have chosen not to comply with the same. It is not disputed at all, that the assessment order in their case for AY 2009-10 was passed on 26.12.2011, followed by a rectification order passed under section 154 dated 09.10.2012 as well as penalty order dated 27.06.2012, the subject matter of instant appeal, which all have been served upon them. However, the appellant have filed the instant appeal against the order dated 27/06/2012 passed under section 271(1)(c) of the Act and admittedly served on 02/08/2012 only on 14/11/2013, i.e. after 499 days, and that too without giving any specific reason relying upon general plea that the Managing Director of the company was going through physical, illegal and mental agony because of obstacles being faced by him, that too; way back in the month of September 2011 and then in month of January 2012 to August 2012, which are not only prior to the date of passing of order but general in nature also besides the fact that they do not mention the dates in particular. It is also not mentioned why other directors(s) could not take care of the same. Further all this pela taken are without any documentary support also.

3.7. The Hon’ble courts have decided that by filing a delayed appeal the appellant does not derive any benefit and hence condonation of delay is a matter of discretion which vs. M Krishnamoorthy (1998) 7 SCC, 123 and again in case of a state of Andhra Pradesh vs.

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Venkatraman Chudava Vs. Muramura Merchant (1986) 159 ITR 59 (AP), Concord of Indian insurance company limited vs. Smt. Nirmaladevi & Sons (1979), 118 ITR 507 (SC). However in cases where the appellant have not come up clean and the reasons given are not based on facts, the delay cannot be condoned merely because of sympathy. It was so decided in the case of Mewa Ram (Deceased by L.Rs) & Ors. V. State of Haryana, AIR 1987 SC 45; State of Nagaland v. Lipok AO & Ors., AIR 2005 SC 2191; and D. Gopinathan Pillai V. State of Haryana Hon’ble Supreme Court gave guidelines on condonation of delay deciding that the courts should not adopt an injustice oriented approach in rejecting the application for condonation of delay, however the court while allowing such application has to draw distinction between delay and inordinate delay for want of bona fides of inaction or negligence would deprive a party of the protection of section 5 of the limitation act 1963. Sufficient cause is a condition precedent for the exercise of discretion by the court for condoning the delay. Hon’ble Supreme Court have time and again held that when mandatory provision is not complied with and that delay is not properly satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit there of approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person. In that case Hon'ble Supreme Court after considering the facts and circumstances did not condolne the delay for inordinate delay of 10 years two months and 29 days, thus upholding the action taken by the Hon’ble Page 14 of 18

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court of Haryana. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts. The law of limitation is enshrined in the legal maxim “Interest Reipublicae Ut Sit Finis Litium”(it is for the general welfare that period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. The Privy Council in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that “a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the judge cannot, on application grounds go beyond the same. Same was the decision taken in the case of Jagdish Lal and Others Vs. State of Haryana (1996) 6 SCC 267 wherein it was observed by the Hon’ble court that the appellant kept on sleeping for the period and suddenly decided to file the appeal. Again Hon’ble High Court of Rajasthan in the case of M/s Binami Cement Ltd. vs. Sate of Rajasthan & Others, (S.B. (Sales Tax) Revision Petition No. 556/2011 decided that delay in filing the appeal cannot be condoned for the reason that appellant failed to explain the specifically the delay for the particular period. The Hon’ble Court in that case referred the decision given by the Apex Court in the case of Lanka Venkateswarlu Vs. State of Andhra Pradesh [(2011) 4 SCC 363] and stated that the Hon’ble Supreme Court has held that the recommended liberal approach in considering the sufficiency of cause for condonation of delay in taking legal proceedings beyond statutorily prescribed Page 15 of 18

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limitation should not override the substantial proceedings beyond statutorily prescribed limitation should not be override the sustention a law of limitation, specially when courts find non justification for the delay. It has been held that the courts, including the Supreme Court, no doubt have recommended liberal approach in considering applications for condonation of delay, yet the concepts such as liberal approach, justice oriented approach and substantial justice cannot be employed to jettison the substantial law of limitation especially when on facts the authority before which application under section 5 of limitation Act is filed, finds no justification for the delay. It has been held that while considering the application under section 5 of the limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under setion 5 of the Limitation Act has to be systematically exercised duly informed by reasons and that whims or fancies, prejudices or predilections cannot and should not form the basis of exercising the discretionary powers to condone delay. In the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation [(2010) 5 SCC 459] the Hon’ble Supreme Court has held that even while a liberal approach is desirable in condoning the delay of short duration, stricter approach is required to be applied in case of inordinate delay. The Hon’ble Supreme Court in case of Binod Bihari Singh (supra), observed that as the petitioner company to overcome a bar of limitation appears took a false stand of filing living review application on 13-12-2000, the application for condonation of delay deserved dismissal.

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3.9. In the case in the instant appeal, the overall approach of the appellant, throughout has been of non- compliance during the course of assessment proceedings, in rectification proceedings and again during the course of penalty proceedings, undertaken by the AO. Then against during the appellant proceedings in the instant appeal and further in the quantum appeal, bearing appeal number CIT(A)-13-/268/13-14 it was noted that though the appellant have filed a statement of fact stating that they are filing additional evidences, which may please be accepted and remanded report in the matter may please be called, however have not filed any additional evidence along with the same then and not even when notices were served to give opportunity to be heard during the appellant proceedings. On all these undisputed facts available on record, I am convinced that appellant have only tried to prolog the matter by just filing an appeal in the instant case, without having any supporting evidence for the plea taken in this appeal as well as for asking condonation of delay in filing the appeal itself. The plea taken is illusionary and not based on facts in the case. Thus, on these given facts, I am of the considered view that the delay in filing of the appeal cannot be condoned in absence of any specific reason. Though it is well accepted that no appellant derives any benefit by filing a delayed appeal, however the same should not be used as a tool, or an excuse to avoid and prolong and thus delay further consequent proceedings from the dEpartment. Accordingly, in this case, where in it is noted that appellant have not been able to explain the reason for delay for the entire period and rather have taken a general plan based on general reasons and hence following the ratio of decision cited supra, I am of the view that case law relied upon by the appellant in the case of collector of land acquisition versus Mst Katiz and Page 17 of 18

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others, 167 ITR 471 are not applicable on the facts, as it is coming out that the appellant have filed the appeal with the half-baked reasons which are not supported by facts in their case and hence the delay in filing the appeal is not condoned.”

Sd/- Sd/- (RAJESH KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated:31 05-2017 Sudip Sarkar /Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT (A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai //True Copy// 6. Guard file. BY ORDER, Assistant Registrar ITAT, MUMBAI

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