TMI Blog2018 (10) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... be condoned. Therefore, the assessee has failed to make out sufficient and reasonable cause for condonation of delay in filing the appeal filed before the CIT(A). Although, the assessee has relied upon various decision in support of its arguments, the facts remain that the term “sufficient cause” is not explained and hence whether to condone the delay or not is purely depends upon the facts and circumstance of each case. Therefore all the case law relied upon by the assessee are considered to be not applicable to the assessee’s case and accordingly not considered. The assessee has failed to make out sufficient and reasonable case before the CIT(A) for condonation of delay in filing of the appeal by 285 days. - ITA No. 955/Mum/2016 - - - Dated:- 5-10-2018 - Shri G. Manjunatha, Accountant Member And Shri Ram Lal Negi, Judicial Member For the Appellant : S/s. Jitendra Jain, Gopal Sharma Akram Khan For the Respondent : Shri Satishchandra Rajore ORDER PER G. MANJUNATHA, AM This appeal filed by the assessee is directed against the order of the CIT(A)-4, Mumbai dated 26.11.2015 and it pertains to A.Y. 2009-10. 2. The assessee has raised the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w material. The assessee was not able to produce any document to prove the claim of purchase of capital asset and mere production of journal entry is not sufficient to prove the genuineness of purchase made from the above party. Accordingly he made addition of `45,90,435/- to the total income of the assessee. 4. Aggrieved by the assessment, order the assessee preferred appeal before the CIT(A). The appeal filed by the assessee before the First Appellate Authority was time barred by 285 days. The assessee has filed a petition for condonation of delay in filing the appeal before the CIT(A) and argued that it has not filed the appeal in time under the bonafide belief supported by a expert advice of Chartered Accountant Shri Ronak Dharmidharika that the assessee had no merit in the case. Accordingly the assessee has not preferred appeal. However, later on when the matter for A.Y. 2010-11 came up for hearing, another Chartered Accountant, Shri Ashwin S. Chhag, advised to file appeal before the First Appellate Authority. Accordingly the assessee has filed this appeal. The assessee further submitted that there is sufficient and reasonable cause for not presenting the appeal in time whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in filing the appeal under Section 246A(i)(b) of the Act, on the ground that the assessee did not have sufficient cause for not presenting the appeal within 30 days on receipt of the assessment order. The learned A.R., referring to the petition filed for condonation of delay along with affidavits of two Chartered Accountants, submitted that the assessee has explained the delay in filing the appeal with the help of affidavits filed by the Chartered Accountants as per which Shri Ronka Dharmidharika, who represented the assessee s case before the AO has advised the assessee not to prefer appeal against the order passed by the AO as the assessee does not have strong case on merits. Therefore, on the basis of the expert advice the assessee did not file the appeal. However, on a later date when the appeal for A.Y. 2010-11 came up, Shri Ashwin S. Chhag, Chartered Accountant, who attended the proceedings for A.Y. 2012-11 informed that the assessee is having a prima facie case in its favour, therefore the order of the AO may be challenged before the appellate authority. Accordingly the assessee decided to file appeal. Therefore the delay in filing of appeal of 285 days is not int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard both the parties, perused the material available on record and gone through the orders of the Authorities below. The learned CIT(A) has rejected the appeal filed by the assessee on the ground that there is a delay of 285 days in filing the appeal and the assessee has not explained the delay in filing the appeal with sufficient and reasonable cause. According to the CIT(A) the events and circumstances arising after limitation cannot constitute sufficient cause. The assessee has taken a conscious decision not to file appeal on the basis of facts of its case. When there being no material change in facts, filing of appeal on different grounds with the help of affidavits cannot constitute reasonable cause or sufficient ground for condoning the delay in filing the appeal. It is not the case of the assessee that it has handed over all necessary papers to the Chartered Accountant for preparation and filing of appeal, but the professional who attended the matter has not filed the appeal and advised the assessee not to file appeal. The assessee failed to bring any material to prove its bonafide attempt made in filing the appeal. The assessee merely furnished affidavits fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown by the appellant for delay in filing the appeal is good and sufficient or not. Here in this case, there is no good and sufficient cause for filing such time-barred appeal. 3.5. The claim of the appellant that subsequent to the decision of not filing the appeal against the order of the Assessing Officer, there was an advice by another Chartered Accountant for filing appeal is obviously cannot constitute sufficient cause for condonation of delay. In the case of Ajit Singh Thakur Singh vs. State of Gujarat AIR 1981 (SC) 733 735, it has been held by the Hon'ble Supreme Court that no event or circumstance arising after expiry of limitation can constitute a sufficient cause . Further, in the case of Shree Venkatesha Paper Boards Ltd. vs. DCIT (2006) 1998 ITD 200/Chennai (1999), such belated appeal has not been admitted as there was no good and sufficient reason for the delay in filing of the appeal. As regards diligence, true guide is that whether the appellant had acted with reasonable diligence in the prosecution of appeal.. Here is not the case like that, hence, delay cannot be condoned vide Brijlnder Singh vs. Kanshi Ram AIR 1917 (PC) 156 ASIBAI vs. Gomat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well aware of the fact of its case and accordingly taken a conscious decision not to file appeal against the addition made by the AO on the basis of information received from DGIT (Inv) which suggests obtaining bogus purchase bills from hawala operators and this fact was further supported by the statement recorded from the Director of the company during the course of survey proceedings. When the assessee has taken a conscious decision not to file appeal against the order passed by the AO, there is no valid reason to be considered by the learned CIT(A) to condone the delay in filing the appeal merely on the basis of self serving documents filed by the assessee, i.e. affidavits of two professionals. No doubt, the appellate authority have inherent power to condone the delay in filing the appeal, provided the assessee who filed the appeal makes out a case of sufficient and reasonable ground for not filing the appeal within the time prescribed under the Act. The courts have held that if the assessee explains the reasons for delay in filing the appeal, then merely for the technical reasons the appeal filed by the assessee cannot be rejected. At the same time, the courts have reiterate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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