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PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 29.12.2015 of ld. CIT(A), Jaipur for the assessment year 2012-13. There is a delay of 350 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by the affidavit of the partner of the assessee's firm.

2. We have heard the ld. AR as well as the ld. DR on condonation of delay and carefully perused the contents of the application for M/s Saraf Export Palace vs. ACIT condonation of delay as well as supporting affidavits filed by the assessee. It was submitted by the ld. AR that the impugned order dated 29.12.2015 was received by the assessee on 15.01.2016. The assessee approach the Advocate Shri Suresh Ojha for preparation of memorandum of appeal which was received by the assessee. Accordingly, the assessee deposited as a sum of Rs. 10,000/- towards the payment of appeal fees on 09.02.2016. It was further submitted that the memorandum of appeal was dispatched to the office of the Tribunal however, no proof of dispatched is available with the assessee. Only during the course of appeal filed against the order passed by the ld. CIT(A) u/s 154 the assessee realized that the appeal is not filed and not pending in the Tribunal and consequently the assessee has filed the present appeal which is barred by limitation. Hence, the assessee is seeking condonation of delay. The ld. AR has submitted that the delay in filing the appeal is neither intentional nor deliberate but due to the bonafide and inadvertent mistake. He has relied upon the decision of Hon'ble Supreme Court in case of Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil 253 ITR 798 and submitted that while deciding the condonation of delay the court should adopt a pragmatic and liberal approach. The ld. AR has also relied upon M/s Saraf Export Palace vs. ACIT the decision Hon'ble Supreme court in case of Collector, land Acquisition vs. Mst Katiji & Ors 167 ITR 471.

3. On the other hand, the ld. DR has vehemently opposed to the condonation of delay and submitted that the assessee has not explained any reasonable cause for not filing the appeal within the period of limitation merely because the assessee claimed to have paid the appeal free would not explain the cause of delay in filing the present appeal.

4. We have considered the rival submissions as well as the relevant material on record. There is a delay of 350 days in filing the present appeal which shows that the delay is not an ordinary delay but it is an inordinate delay. The assessee has explained the cause of delay as stated in the application and affidavit that after doing the needful for preparing the memo of appeal and payment of fee the official of the assessee was directed to dispatch the appeal to the office of ITAT, Jaipur Bench. Thus, the assessee was under impression that the appeal has been filed and pending before the Tribunal. It is pertinent to note that the payment of appeal fee on 09.02.2016 would show the intention of the assessee to file the appeal however, until and unless the appeal is presented and duly filed in the registry of the Tribunal, the mere payment of the fee by the assessee at its place through bank challan M/s Saraf Export Palace vs. ACIT would not explain the delay in filing the appeal after about one year. The contents of the affidavits are reproduced as under:-

"I, Janardan Saraf S/o. Late Devkinandan Saraf R/o Ralan Marg Sardarshahar declare on oatch as under:-

That I am partner of M/s Saraf Export Palace, Sardarshahar fully conversant with the affairs of the firm, related Taxation as well as business.

That for filing appeal in Tribunal, form No. 36 was prepared and verified on 25.01.2016 and an amount of Rs. 10000.00 towards appeal fee of Tribunal was also deposited on 09.02.2016. That after doing needful our official was directed to dispatch the appeal to the office of ITAT, Jaipur Bench, Jaipur. That we were under the impression that the appeal has been submitted and pending before Hon'ble Tribunal, but only came to know, when the office of Tribunal Bench, Jaipur as well as as Jodhpur made known that no such appeal is pending. That there was no intention for not filing or late filing of appeal against the order of Commissioner of Income Tax Appeals-III, Jaipur, dated 29.12.2015.

M/s Saraf Export Palace vs. ACIT Further, the AO noted that the assessee has claimed depreciation amounting to Rs. 1,68,60,767/- on wind mill plant and machinery which is more than the total receipt as provided vide corrigendum filed by the assessee. The relevant para of the AO are in para 3.4 as under:-

"3.4 The contention of the assessee raised vide above reply is fake and baseless because section 80IA of the Act clearly shows that where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section(4), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred percent of the profits and gains derived from such business for ten consecutive assessment years. It is clear from the above interpretation of law that assessee is given opportunity to claim such deduction for 10 years out of prescribed 15 years. It is why because assessee may not derive any gain or profit from such eligible business, in the initial stage of setting up of the business as the assessee has to invest huge amount in infrastructure development of the business for which claiMing of huge amount of depreciation. In the instant case the assessee has claimed depreciation amounting to Rs. 1,68,60,767/- on windmill plant and machinery which is more than the total receipt as provided vide corrigendum of the balance sheet as on 31/03/2012 amounting to Rs. 44,24,430/-. It is clear, therefore, that the assessee has not derived any gain or profits from such eligible business after giving the effect of the depreciation so claimed by the assessee. Furthermore, the assessee vide order sheet entry dated 13/01/2015 was asked to file separate account of windmill business but the assessee has neither filed any details of M/s Saraf Export Palace vs. ACIT account of the windmill business nor has produced books of accounts maintained for such business so far."