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Facts
The assessee filed an appeal against the order dated 06.12.2024, raising multiple grounds including additions under Section 68 and Section 69C, and additions related to penny stocks and interest income. The appeal was filed belatedly and was also noted to be defective.
Held
The Tribunal held that the right of appeal is statutory and requires adherence to prescribed timelines and conditions. Since the assessee failed to provide any application or affidavit explaining the delay and did not appear, the appeal could not be admitted.
Key Issues
Whether an appeal filed beyond the prescribed period can be entertained by the Tribunal in the absence of any application or affidavit explaining the delay?
Sections Cited
68, 69C, 253(3), 253(5)
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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI SANDEEP GOSAIN & SHRI OM PRAKASH KANT
ORDER PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against the order dated 06.12.2024 passed by the Ld. Commissioner of Income-tax (Appeals)–3, Bhopal [hereinafter referred to as “the Ld. CIT(A)”] for the assessment year 2013–14. The assessee has raised multiple grounds challenging, inter alia: (i) addition of ₹44,01,04,000/- under section 68 of the Income-tax Act, 1961 (“the Act”); (ii) addition of ₹15,54,465/- relating to alleged penny stock transactions; (iii) addition of transactions; (iii) addition of ₹11,08,57,180/- under section 69C for under section 69C for unexplained expenditure; (iv) addition of lained expenditure; (iv) addition of ₹14,58,70,458/ 14,58,70,458/- being 1% of the transaction value of of the transaction value of ₹14,58,70,45,800/- in share and commodity transactions; and (v) addition of interest income commodity transactions; and (v) addition of interest income commodity transactions; and (v) addition of interest income amounting to ₹8,85,20,465/ 8,85,20,465/-.
At the outset, we may like to mention that At the outset, we may like to mention that despite due notice, despite due notice, none appeared on behalf of the assessee. Notice was issued by none appeared on behalf of the assessee. Notice was issued by none appeared on behalf of the assessee. Notice was issued by registered post on 28th August, 2025 though postal authorities. The registered post on 28th August, 2025 though postal authorities. The registered post on 28th August, 2025 though postal authorities. The envelope has not been returned undelivered, and hence, by virtue of envelope has not been returned undelivered, and hence, by virtue of envelope has not been returned undelivered, and hence, by virtue of the General Clauses Act, service is d the General Clauses Act, service is deemed to have been effected. eemed to have been effected. The assessee has neither attended the proceedings nor sought The assessee has neither attended the proceedings nor sought The assessee has neither attended the proceedings nor sought adjournment. We are therefore satisfied that the assessee is not adjournment. We are therefore satisfied that the assessee is not adjournment. We are therefore satisfied that the assessee is not interested in prosecuting the appeal. Accordingly, we proceed to interested in prosecuting the appeal. Accordingly, we proceed to interested in prosecuting the appeal. Accordingly, we proceed to dispose of the appeal dispose of the appeal ex-parte qua the assessee after hearing the Ld. he assessee after hearing the Ld. Departmental Representative (DR) and perusing the material Departmental Representative (DR) and perusing the material Departmental Representative (DR) and perusing the material available on record.
At the threshold, the registry has reported a delay of At the threshold, the registry has reported a delay of At the threshold, the registry has reported a delay of 96 days in filing the appeal. Further, the appeal was also noted to be in filing the appeal. Further, the appeal was also noted to be in filing the appeal. Further, the appeal was also noted to be defective as it was it was not signed by the Managing Director not signed by the Managing Director of the assessee-company. When the matter was taken up, no application company. When the matter was taken up, no application company. When the matter was taken up, no application for condonation of delay, nor any affidavit setting out reasons for for condonation of delay, nor any affidavit setting out reasons for for condonation of delay, nor any affidavit setting out reasons for delay, was found on record. Although column 11 of Form No. 36 delay, was found on record. Although column 11 of Form No. 36 delay, was found on record. Although column 11 of Form No. 36 acknowledges the existence of delay, acknowledges the existence of delay, mere acknowledgment does mere acknowledgment does not constitute a valid request for condonation not constitute a valid request for condonation under the Act. under the Act.
We have heard submission of the Ld. DR and perused the We have heard submission of the Ld. DR and perused the We have heard submission of the Ld. DR and perused the material placed on record. material placed on record. The central issue that arises for our The central issue that arises for our consideration is whether, in the absence of any application or hether, in the absence of any application or hether, in the absence of any application or affidavit explaining the delay, an appeal filed beyond the period affidavit explaining the delay, an appeal filed beyond the period affidavit explaining the delay, an appeal filed beyond the period prescribed under section 253(3) can be entertained by the Tribunal? prescribed under section 253(3) can be entertained by the Tribunal? prescribed under section 253(3) can be entertained by the Tribunal?
4.1 It is a trite law that law that the right of appeal is a creature of stat the right of appeal is a creature of statute, and the conditions subject to which such right may be exercised are and the conditions subject to which such right may be exercised are and the conditions subject to which such right may be exercised are equally statutory. Section equally statutory. Section 253(3) mandates that an appeal shall be mandates that an appeal shall be filed within the prescribed period. Section filed within the prescribed period. Section 253(5) 253(5) empowers the Tribunal to admit an appeal after expiry of limitation only if it is Tribunal to admit an appeal after expiry of limitati Tribunal to admit an appeal after expiry of limitati satisfied that the appellant had “sufficient cause” for not presenting satisfied that the appellant had “sufficient cause” for not presenting satisfied that the appellant had “sufficient cause” for not presenting the appeal within such period. the appeal within such period. Thus the exercise of jurisdiction u/s Thus the exercise of jurisdiction u/s 253(5) is conditioned upon the assessee demonstrating, by way of 253(5) is conditioned upon the assessee demonstrating, by way of 253(5) is conditioned upon the assessee demonstrating, by way of formal request supported by reason formal request supported by reasons the existence of sufficient s the existence of sufficient cause for the delay. cause for the delay. The burden to satisfy these conditions lies The burden to satisfy these conditions lies squarely upon the assessee. squarely upon the assessee. Thus the exercise of jurisdiction u/s Thus the exercise of jurisdiction u/s 253(5) is conditioned upon the assessee demonstrating, by way of 253(5) is conditioned upon the assessee demonstrating, by way of 253(5) is conditioned upon the assessee demonstrating, by way of formal request supported by re formal request supported by reasons the existence of sufficient asons the existence of sufficient cause for the delay.
4.2 In the present case, it is admitted position the appeal has been In the present case, it is admitted position the appeal has been In the present case, it is admitted position the appeal has been filed belatedly. However, the assessee has neither filed any petition filed belatedly. However, the assessee has neither filed any petition filed belatedly. However, the assessee has neither filed any petition for condonation of delay nor any affidavit explaining the reasons for condonation of delay nor any affidavit explaining the reasons for condonation of delay nor any affidavit explaining the reasons that prevented the filing of appeal within limitation. During the that prevented the filing of appeal within limitation. During the that prevented the filing of appeal within limitation. During the course of hearing neither the assessee attended nor any explanation course of hearing neither the assessee attended nor any explanation course of hearing neither the assessee attended nor any explanation was offered in writing to cure the defect for invoking the Tribunal’s was offered in writing to cure the defect for invoking t was offered in writing to cure the defect for invoking t discretionary jurisdiction u/s 253(5). discretionary jurisdiction u/s 253(5). The Tribunal cannot, in The Tribunal cannot, in absence of any material on record, assume the existence of absence of any material on record, assume the existence of absence of any material on record, assume the existence of sufficient cause or supply reasons on behalf of the assessee. To do sufficient cause or supply reasons on behalf of the assessee. To do sufficient cause or supply reasons on behalf of the assessee. To do so would be to rewrite the statutory conditions or dilute the so would be to rewrite the statutory conditions or d so would be to rewrite the statutory conditions or d legislative intent governing limitation. The law does not contemplate legislative intent governing limitation. The law does not contemplate legislative intent governing limitation. The law does not contemplate condonation on the basis of conjecture, sympathy, or mere condonation on the basis of conjecture, sympathy, or mere condonation on the basis of conjecture, sympathy, or mere acknowledgment of delay. acknowledgment of delay. In absence of any application, affidavit In absence of any application, affidavit whatsoever there is no material before us on the basis of which the whatsoever there is no material before us on the bas whatsoever there is no material before us on the bas delay could be condoned. delay could be condoned. Since the mandatory pre Since the mandatory pre-condition for exercising jurisdiction under section 253(5) remains wholly exercising jurisdiction under section 253(5) remains wholly exercising jurisdiction under section 253(5) remains wholly unfulfilled, the appeal unfulfilled, the appeal cannot be admitted in law.We therefore hold We therefore hold that the appeal is barred by limitation barred by limitation and, being unsupported by and, being unsupported by any request or cause shown for condonation, is liable to be any request or cause shown for condonation, is any request or cause shown for condonation, is dismissed in-limine as barred by limitation. However it is made clear as barred by limitation. However it is made clear as barred by limitation. However it is made clear that assessee is it liberty for seeking revival of the appeal if so that assessee is it liberty for seeking revival of the appeal if so that assessee is it liberty for seeking revival of the appeal if so advised by way of filing proper advised by way of filing properly constituted an application of ly constituted an application of condonation of the delay supported by the cogent reasons and of the delay supported by the cogent reasons and of the delay supported by the cogent reasons and evidences.
In the result, appeal of the assessee is not admitted. In the result, appeal of the assessee is not admitted. In the result, appeal of the assessee is not admitted.
Order pronounced in the open Court on ounced in the open Court on 26/11/2025. /11/2025.