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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI AMIT SHUKLA & SHRI ASHWANI TANEJA
आदेश ORDER �ी अिमत शु�ला, �या स: PER AMIT SHUKLA, JM: The present appeal has been filed by the assessee against impugned order of the Commissioner of Income Tax Appeals [CIT(A)]-1 Mumbai, dated 05.01.2010 for the quantum of assessment passed under section 143(3) for the assessment year 2006-07.
2 गु�ता �ीमहाउस �ाइवेट �ल�मटेड Gupta Gemhouse Pvt Ltd. ITA 6202/Mum/2014 2. At the outset, it is noticed that, appeal filed by the assessee is barred by limitation by 1225 days. In support of the condonation of delay, the assessee has made following averments in the affidavit:-
“Affidavit of Mr. Gurudayal Khandelwal, Director of Gupta Gemhouse Pvt Ltd. That I the name deponent, am well conversant with the facts deposed to below:
1. 1. That the order of Commissioner of Income Tax (Appeals) was received on 17th April 2010 confirming the disallowance of short term capital losses.
2. That the time for filing of the appeal before the Tribunal was expired on 16th June 2010.
3. That the company had closed down its business and did not expected any incomes in future. Therefore we do not expect the carry forward of short term capital loses to be set off in future. Hence we did not pursued the appeal further to ITAT.
4. That the penalty order was passed on 28.03.2012 levying the penalty on disallowance of short term losses. During the course of consultation with the senior council regarding the penalty, we were suggested to file appeal against the quantum order before the Hon’ble ITAT. Accordingly, the appeal before the Tribunal was filed on 23rd October, 2013.
5. That there is delay in filing of appeal by 1225 days”.
The Ld. Counsel, Shri F V Irani submitted that when the order of the Commissioner (Appeals) was received confirming the disallowance of short-term- capital-loss, the assessee did not file the appeal because the business of the assessee had closed down and did not expect any income in future. Therefore, it was no occasion or reason to carry forward the short-term- 3 गु�ता �ीमहाउस �ाइवेट �ल�मटेड Gupta Gemhouse Pvt Ltd. ITA 6202/Mum/2014 capital-loss to be set off in future. Later on, when penalty was levied on such a disallowance of short-term-capital- loss, the assessee was advised to file the appeal in the quantum proceedings. Thus, in these circumstances, the delay in filing the appeal should be condoned. In support, he relied upon the decision of Hon’ble Supreme Court in the case of N. Balakrishna vs M. Krishnamurthy (1997) 7 SCC 123, wherein the Hon’ble Supreme Court held that the words “sufficient cause” should be construed liberally. Here in this case he submitted that there is no mala fide or deliberate delay by the assessee.
On the other hand, Ld. DR strongly objected to the condoning the delay on the ground that, no reasonable cause has been given for such a huge delay.
After considering the submissions of the parties and on perusal of the affidavit filed, on the condonation it is seen that the only ground taken for condonation of delay is that, after the receiving of the quantum order, assessee was of the opinion that no purpose would be solved by filing the appeal as it did not intend to carry on the business and there would be no income in future on which the carry forward of short-term-capital-loss would have been set off. Thus, there was a conscious and deliberate decision not to file the appeal at that time. It has been further stated that, it was only when penalty order was passed on 23.03.2012, the assessee was 4 गु�ता �ीमहाउस �ाइवेट �ल�मटेड Gupta Gemhouse Pvt Ltd. ITA 6202/Mum/2014 advised to file the appeal. This plea also seems to be farfetched as the penalty order was passed on 23.03.2012, whereas the appeal before the Tribunal against the quantum order has been filed on 23.10.2013, that is, after more than 1½ years of the passing of the penalty order. Thus, the reasons stated by the assessee in the averments made in the affidavit cannot be construed as “sufficient cause” so as to condone the delay of 1225 days. There was deliberate decision by the assessee for not filing the appeal, therefore, it cannot be held that there is no deliberate delay in filing the appeal. Even the reasons stated in the affidavit do not substantiate the reasonable cause given by the assessee, because as pointed out above, even after the passing of the penalty order, the appeal has been filed after expiry of more than 1½ years. Thus, the appeal of the assessee is dismissed in limine being barred by limitation.