TaxTMI 
TaxTMI 
2013 (8) TMI 176
X X X X Extracts X X X X
X X X X Extracts X X X X
....alled for the explanation in this respect and various opportunities were given to the assessee. However, inspite of availing sufficient opportunities the assessee did not file the details of sundry creditors and debtors and, thus, in the absence of any documentary evidence in support of the claim of the assessee, the AO treated the amount of Rs.54,55,019/- (Rs.55,03,412 - Rs.48,393) as unexplained credits and added the same to the income of the assessee. The assessee preferred appeal before the learned CIT(A) but the same was filed with a delay of nine months and 4 days (278 days). 3. Before the learned CIT(A) the assessee filed a letter dated 07.07.2011 for condonation of delay. The contents of the letter are reproduced as under:- "I, Mr. Anand B Shinde, being Karta of Mr. Anand B Shinde H.U.F. is attending business and I.T. matters from time to time. I could not file my appeal in time as I am the only one son to look after my aged mother namely: (1) Mrs. Gangubai baburao Shinde (Mother) My mother was not keeping good health for last so many years. My mother died at the age of 87 years. I was required to attend my mother from time to time till her death. I was ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppeal of the assessee being barred by limitation the learned CIT(A) relied upon the following authorities:- * Advani (J.B) and Co. (P) Ltd. v. Shah R.D., CIT 72 ITR 395 (SC) * Vinay Extraction P. Ltd. v. Vijay Khanna 271 ITR 450 (Guj) * Foramer France v. DCIT 002 ITR (Trib) ITAT * Surinder Kumar Boveja v. CWT 287 ITR 450 (Guj) * CIT v. Orissa Concrete and Allied Industries Ltd. 264 ITR 186 (Cal) * M.Loganathan v. CIT 302 ITR 139 (Mad) 4. Before us the assessee has taken an additional ground to the effect that the learned CIT(A) ought not have dismissed the appeal of the assessee on limitation ground. Surprisingly, the assessee before us resiled from its earlier stand taken before the learned CIT(A) as to the cause for the delay in filing the appeal. Now he has come with a new explanation to the effect that he was wrongly advised by his tax consultant 'Late Mr. J.N.Daya' to take a wrong plea before the learned CIT(A). He was advised to explain the delay citing the reason of illness and subsequent death of the mother of the Karta of the assessee whereas the delay was caused due to negligence of the consultant himself. As the assessee was dependant on the consulta....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the different explanations put-forth by the assessee do not constitute sufficient cause as required by law. There is no explanation as to why the assessee did not bother to look into the matter for long period of nine months and four days. Even the assessee had tried to mislead the learned CIT(A) by taking a wrong plea before him citing the death of mother of Karta of HUF as the cause of delay, which proved to be wrong. The assessee did not put true facts before the learned CIT(A). Even the explanation put-forth before us does not justify the act and conduct of the assessee in this respect. The Karta of the assessee (HUF) has put allegations on his consultant to the effect that there was negligence on his part and on his advice he put a wrong plea before the learned CIT(A). We have no hesitation to hold that it was for the assessee to reasonably apply his mind and not file any letter based on wrong and false facts. The assessee was supposed to give true facts to the first appellate authority. The assessee HUF through its Karta deliberately took a wrong and false plea and when it could not succeed in misguiding the authority below, now has tried to put all the burden of its miscond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....file, the grounds urged in paragraph 3 of the C.M.Application cannot be taken on his face value. For condonation of delay, two questions are required to be seen (i) whether there is sufficient cause and it depends from case to case whether in given circumstances, sufficient cause has been established or not? (ii) Whether the law of limitation has to be enforced or the question of limitation should be taken only as a mere formality. In the present case, it is not the case of the applicant-appellant that after the file was misplace any effort was made by the learned counsel or his clerk to trace the file. Even the applicant-appellant (client) did not bother to enquire about his case from his counsel. This is a case of total callousness and negligence on the part of the applicant/appellant. Even affidavit accompanying the application contains no cogent details about the delay. I am not inclined to accept the explanation particularly when the applicant-appellant has misrepresented in paragraph 2 of the application that case was lastly refilled on 21.09.2004 whereas the file was returned to him on 21.09.2004 with some objections and the same was refilled lastly on 04.07.2006. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 198 has held that there is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. In another authority of Hon'ble Orissa High Court styled as Mohan Prasad Singh Deovs Ganesh Prasad BhagatAndOrs AIR 1952 Ori 168, His Lordship Narasimham J; has observed as under "It is well known that on many difficult questions of law there is a conflict of decisions and it is difficult for any Counsel to anticipate what view a Judge would take. No amount of care or diligence on his part would therefore suffice and in such circumstances there may be a good case for condoning the delay. Similarly mistake of fact if it is committed while acting in good faith may be a sufficient cause. But a mistake of fact arising out of negligence cannot be said to be committed in good faith. 20. In 'AMBIKA RANJAN v. MANIKGANJ LOAN OFFICE', 55 Cal 798 and 'SURENDRAMO-HAN v. MAHENDRANATH', 59 Cal 781 t....