FINAVENTURE CAPITAL LTD,MUMBAI vs. DCIT 3(1), MUMBAI

This appeal by the assessee is directed against the order of the CIT(A)- 5, Mumbai dated 11.02.2003 passed in respect of the order of assessment passed exparte under section 143(3) r.w.s. 144 of the Income Tax Act, 1961 (in short 'the Act') vide order dated 26.11/.2011 for A.Y. 2009-10.

1. On the given facts, circumstances and legal propositions; Hon. CIT(A) erred in confirming the assessment in absence of reasonable opportunity of making the submissions to the assessee in principles of natural justice and such assessments are in violation of principles of natural justice and liable to be annulled.

2. Without prejudice to Ground No. 1, on the given facts, circumstances and legal propositions; Hon. CIT (A) erred in confirming the assessment in absence of reasonable opportunity of making the submissions to the assessee in principles of natural justice and such assessments are in violation of principles of natural justice and matter may be restored to the desk of assessing officer in interest of justice by giving final opportunity to the assessee.

3. On given facts, circumstances, and judicial pronouncements Hon. CIT(Appeals) erred in confirming in addition made by Ld. AO of Rs. 33,91,153/- as income being gross receipts in audited profit and loss account without allowing expenses claimed in profit and loss account which is bad in law and erroneous in facts and liable to be deleted.

M/s. Finaventure Capital Ltd.

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4. The hearing of this appeal was fixed on at least four occasions and at all these hearings, none appeared for the assessee. Even today, i.e. 01.03.2016, when this case was called for hearing, none was present for the assessee but the learned D.R. was present for Revenue. As noted in the pre paras 2.1 and 2.2 of this order, it is seen that the assessee failed to represent its case before the authorities below inspite of being afforded many opportunities of hearing to represent its case. In these circumstances, we are of the view that the assessee is not serious about pursuing this appeal and therefore proceed to dispose off the same with the assistance of the learned D.R. for Revenue and the material on record. This appeal having been filed belatedly by 322 days, we proceed to first dispose off the petition for condonation of delay for deciding the admissibility of the impugned appeal for hearing.

M/s. Finaventure Capital Ltd. Order on petition for condonation of delay in filing this appeal before the Tribunal for A.Y. 2009-10.

5. The impugned order of the CIT(A) for A.Y. 2009-10 was admittedly received by the assessee on 21.02.2013 and therefore this appeal ought to have been filed on or before 22.04.2013. The appeal was admittedly filed on 13.03.2014, thereby leading to a delay of 322 days in filing this appeal. 5.1 Alongwith the appeal, the assessee has filed a petition for condonation of delay of 322 days in filing this appeal before the Tribunal, accompanied by an affidavit. At para 6 of the affidavit, the reason for the delay is submitted to be as under: - “6. However, the appeal could not be filed before the time limit as Hon. CIT(A)’s order was collected by the accountant of the company. Accountant kept the order with himself and therefore, management was not aware about the order passed by Hon. CIT(A) till date as the accountant did not inform the management. The assessee prays that in view of the circumstances, being beyond the control of the assessee, the delay in filing the appeal be condoned and the appeal be heard on merits.” 5.2 Per contra, the learned Departmental Representative opposed the assessee's prayer for condonation of delay of 322 days in filing the appeal for A.Y. 2009-10. The learned Departmental Representative submitted that the delay of 322 days should not be condoned in a routine manner and that a distinction ought to be drawn between a case where the delay in inordinate, as it is in the case on hand i.e. of 322 days and in cases where the delay is of a few days. The learned Departmental Representative further contended that the explanation put forward by the assessee for the delay of 322 days (supra) does not amount to reasonable and sufficient cause which were beyond the assessee's control and the assessee has certainly not proved beyond doubt that it was diligent and not guilty of negligence whatsoever in the matter. The learned Departmental Representative prayed that since the inordinate delay in filing of this appeal being clearly due to the negligence on the part of the assessee, the petition for condonation of delay of 322 days in filing the appeal be rejected and the appeal be dismissed on this score, without admitting them for adjudication.

M/s. Finaventure Capital Ltd. 5.3 We have heard both parties and perused and carefully considered the material on record. The Hon'ble Apex Court in the case of Vedabai alias Vaijayanatabai Baburao Patil V Shantaram Baburao Patil & Ors (2002) 253 ITR 798 has held that while exercising discretion, distinction should be made between a case where the delay is inordinate and a case where the delay is of a few days, which may deserve a liberal approach. The exercise of discretion, their Lordships observed, would depend on the facts of each case and no hard or fast rule can be laid down in this regard. In the aforesaid case, the application for condonation of delay in filing the appeal was 7 days. In the case of Ganga Sahai Ram Swarup V ITAT (2004) 271 ITR 512 (All) the delay was of 12 days in filing the appeal and it was held therein that a liberal view ought to be taken, as there was a delay of only a very short period. Even in the land mark decision on the issue of condonation, Collector, Land Acquisition V MST Katiji & Others (1987) 167 ITR 471 (SC), wherein the Hon'ble Apex Court laid down that courts should have a liberal and practical approach in exercising its discretionary powers of condonation of delay, the delay was of 4 days. 5.3.1 From the averments made in para 6 of the affidavit for condonation of delay we are of the opinion that not only the submissions are merely self- serving statements, the veracity of which are not established but also there is an inordinate delay of 322 days in filing the appeal. The assessee in its averments has not made out a case that there was reasonable cause which being beyond the control of the assessee, prevented him from filing the appeal in time before the Tribunal. The delay cannot be condoned merely because the assessee's case calls for sympathy or merely out of benevolence. For the exercise of discretion in condoning the delay, it must be established beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence on his part. Sufficient cause as contemplated in the limitation provisions must be a cause which is beyond the control of the party. In the case on hand, the factual matrix, in our view, clearly establishes that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided by the assessee if he had exercised due care and attention. Therefore in our opinion, in the factual