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Facts
The assessee filed an appeal against an order of the CIT(A) which had restored the matter to the Assessing Officer for fresh assessment. The appeal was delayed by 115 days, with the assessee claiming a bona fide belief that no further appeal was necessary and later discovering a jurisdictional defect in the notice.
Held
The Tribunal held that the assessee failed to prove sufficient cause for the delay and that the delay was due to negligence and lack of due diligence. The Tribunal's reliance on a co-ordinate bench decision was found to be factually distinguishable.
Key Issues
Whether the delay of 115 days in filing the appeal is condonable due to the assessee's alleged bona fide belief and subsequent discovery of a jurisdictional defect.
Sections Cited
250, 148, 144
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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI VIKRAM SINGH YADAVSHRI SANDEEP SINGH KARHAIL
Date of Hearing – 24/11/2025 Date of Order - 26/11/2025
O R D E R PER SANDEEP SINGH KARHAIL, J.M.
The assessee has filed the present appeal against the impugned order dated 27/03/2025, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2015-16.
2. The present appeal is delayed by 115 days. Along with the appeal, the assessee has filed an application seeking condonation of delay, duly supported by the assessee's affidavit. As per the assessee, the learned CIT(A), vide (A.Y. 2015-16) 2 impugned order, restored the matter to the file of the Assessing Officer (“AO”) for fresh assessment, and therefore, he was under a bona fide impression that no further appeal was required to be filed before the Tribunal. The assessee further submitted that during his discussion with his consultant, he came to know that there is a fundamental jurisdictional defect which goes to the root of the matter, and thus, the validity of the defect in the notice could have been challenged by filing the appeal before the Tribunal. It is further pleaded that the Hon’ble Jurisdictional High Court as well as the Tribunal have passed a favourable order on a similar issue, quashing the notices issued under section 148 of the Act where such jurisdictional defects were presented. The assessee submitted that immediately upon receiving this advice and becoming aware of the legal position, he initiated steps for filing the present appeal before the Tribunal, and due to the aforesaid circumstances, the present appeal was filed after a delay of 115 days. Accordingly, the assessee has prayed for condonation of the delay in filing the present appeal. We find that, apart from the aforementioned reasons, no other reasons have been stated in the affidavit. The submissions made by the assessee in his affidavit are reproduced as follows for ready reference: - “2. The Assessing Officer had passed an assessment order dated 30/03/2022 for AY 2015-16, aggrieved by which i had filed the appeal before the CIT (A) on 22/04/22. In relation to this appeal filed by me, the Learned Commissioner of Income Tax (Appeals) [CIT(A)]| passed an order dated 27/03/2025.
That however, due to the circumstances explained hereinbelow, I could not file the appeal within the statutory period and the same has resulted in a delay of 115 days.
4. That the impugned assessment order had been set aside by the Learned CIT(A) and the matter was restored back to the file of the Assessing Officer for fresh assessment. On account of this direction, I was under the bona fide impression that no further appeal was required to be filed before this Hon'ble Tribunal.
ITA No.6063/Mum/2025 (A.Y. 2015-16) 3
5. That under this impression, I confined my attention only to preparing for the reassessment proceedings before the Assessing Officer. I had collected supporting documents and prepared explanations with the intention of submitting them before the Assessing Officer in order to represent my case properly in the assessment which was set aside.
6. That thereafter, in order to assist me in the proceedings before the Assessing Officer, I engaged the services of a professional consultant. Upon a careful review of my matter, the consultant pointed out that there was a fundamental jurisdictional defect in the very notice issued under section 148 of the Income-tax Act, 1961.
7. That the consultant further explained that this jurisdictional defect went to the root of the matter and that the validity of the defective notice could have been challenged by filling the appeal before the Honorable Tribunal. It was at this stage that I first became aware of this important legal issue which had earlier escaped my attention.
That I was also informed that very recently, in the months of July and August 2025, the Hon'ble Jurisdictional Bombay High Court as well as the Hon'ble Mumbai Tribunal have passed favorable orders in similar matters, quashing the notices issued under section 148 where such jurisdictional defects were present. 9. That in view of these authoritative pronouncements, it became clear that my case also stood on the same footing and that an appeal before this Hon'ble Tribunal was necessary to challenge the validity of the notice issued under section 148 and the consequential assessment proceedings. 10. That immediately upon receiving this advice and becoming aware of the legal position, I initiated steps to file the present appeal. Thus, due to the reasons aforementioned there has been a delay of 115 days in filling appeal before the Hon'ble ITAT.” 3. During the hearing, the learned Authorised Representative (“learned AR”) reiterated the submissions made in the affidavit seeking condonation of the delay of 115 days in filing the present appeal before the Tribunal and did not point to any other material justifying condonation of the delay in filing the present appeal before the Tribunal.
4. We find that the Hon’ble Supreme Court, in its judgment rendered in Pathapati Subba Reddy (Died) by L.Rs. & Ors. v/s The Special Deputy Collector (LA), reported in [2024] 4 S.C.R. 241 / 2024 INSC 286, very lucidly explained (A.Y. 2015-16) 4 the law of limitation pertaining to the condonation of delay. The Hon’ble Supreme Court held that section 3 of the Limitation Act, 1963 casts an obligation upon the court to dismiss an appeal which is presented beyond limitation. The Hon’ble Supreme Court further held that under section 5 of the Limitation Act, 1963, the courts are conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period, provided the proposed appellant is able to establish ‘sufficient cause’ for not filing it within time. It is further held that the said power to condone the delay or to admit the appeal preferred after the expiry of time is discretionary in nature and may not be exercised even if sufficient cause is shown based upon various factors such as negligence, failure to exercise due diligence, etc. After considering a host of decisions on this subject, the Hon’ble Supreme Court in para-26 of its judgment observed as follows: –
“26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that: (i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself; (ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time; (iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally; (iv) In order to advance substantial justice, though liberal approach, justice- oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
ITA No.6063/Mum/2025 (A.Y. 2015-16) 5
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and (viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”
In the present case, from the submissions made in the affidavit, as noted in the foregoing paragraphs, it is evident that the assessee has not even proved the existence of sufficient cause for not preferring the appeal within the limitation period, and for the inordinate delay of 115 days. During the hearing, the learned AR placed reliance upon the decision of the coordinate bench of the Tribunal in Anandkumar Jain v/s ITO, in dated 20/08/2019, and submitted that under similar circumstances the coordinate bench condoned the delay in filing the appeal finding the same to be totally due to bona fide and genuine belief of the assessee. For completeness, the relevant facts in the aforesaid decision, are reproduced as follows: – “4. Before us, the learned Representative for the assessee drew our attention to the factual matrix which is discussed above in detail. Our attention was also drawn to the request for condonation of delay and affidavit of the legal heir, which reads as under:- ".....
I say that the appeal against the order dated 24.01.2011 passed by the Ld. Commissioner of Income-tax (Appeals) -29, Mumbai, has been filed before the Hon'ble Tribunal on 15.06.2012 for AY. 2003-04. The appeal is thus filed belatedly by 420 days before the Hon'ble Tribunal.
3. I say that the Ld. CIT(A) has dismissed the appeal of the applicant because the Hon'ble Jurisdictional High Court in the case of CIT vs. Kalpataru Colours And Chemicals (328 ITR 451) was against the issue involved in the assessee's case.
I say that I was advised by my Tax Consultant that no fruitful purpose would be served by filing an appeal before the Hon'ble Tribunal since the Hon'ble (A.Y. 2015-16) 6 Jurisdictional High Courts was against the applicant and that the same was also binding on the Hon'ble Tribunal.
5. I say that thereafter I was informed that the said judgement of the Hon'ble Bombay High Court was reversed by the Hon'ble Supreme Court in the case of Topman Exports v. CIT ( 342 ITR 49] (SC)].
6. I say that I was accordingly advised by my Tax Consultants that since the judgment of the Hon'ble Bombay High Court has been reversed by the Hon'ble Supreme Court, the same no longer remained a good law and that the order of the Ld. CIT(A) should be challenged before the Hon'ble Tribunal.
7. I say that no sooner I was informed that the appeal should be filed before the Hon'ble Tribunal and that the judgment of the Hon'ble Bombay High Court has been reversed.
8. I say that immediately thereafter I instructed my Tax Consultant to prepare the relevant documents and file the appeal for the Hon'ble Tribunal. Accordingly, the appeal was filed on 15.06.2012.
9. I say that the delay in filing the appeal is solely due to the bonafide and genuine belief and that no malafide intentions are involved in filing the appeal late.
10. I say that the application for condonation of delay is being separately filed and I confirm the facts stated therein to be correct." From above, it can be seen that the assessee chose not to file the appeal before the Tribunal based on the advice of the Consultant that the jurisdictional High Court decision, which is binding on the assessee, has decided the issue against the assessee, and, as such, filing appeal before Tribunal will not be fruitful. Subsequently, since the Hon'ble Supreme Court decided the issue in favour of the assessee in another case, the assessee was advised to file appeal before the Tribunal. As such, delay in filing the appeal was solely due to the bona fide and genuine belief and that no mala fide intentions were involved.”
From the perusal of the aforesaid decision, at the outset, it is evident that in the facts of the case, the decision of the Hon’ble High Court was against the taxpayer on the issue on which the appeal was filed before the Tribunal. Therefore, the taxpayer did not prefer an appeal, as it would not have served any fruitful purpose. However, subsequently, the said decision of the Hon’ble High Court was reversed by the Hon’ble Supreme Court, and thereafter, the taxpayer was advised to prefer the appeal as the decision of the Hon’ble Supreme Court was in favour of the taxpayer. We find that under these circumstances, the coordinate bench condoned the delay in filing the appeal.
(A.Y. 2015-16) 7 However, in the present case, the assessee could not point out any similar circumstances, and therefore, the decision as relied upon by the learned AR is factually distinguishable.
We are of the considered view that even if the case of the assessee involved a jurisdictional issue, the assessee could have filed the appeal before the Tribunal within the prescribed limitation period without waiting for any decision in its favour. Time and again, we have seen that many assessees raise jurisdictional issues for the first time before the Tribunal, which are considered and decided on the basis of the facts involved, and in some cases, even a Special Bench is constituted where such issues have larger implications. Thus, we are of the considered view that the delay in the present case is entirely due to negligence and want of due diligence on the part of the assessee.
8. During the hearing, the learned Departmental Representative submitted that the learned CIT(A), vide impugned order, has set aside the assessment order as the same was passed ex parte under section 144 of the Act. Thus, it was submitted that since the matter is restored back to the file of the AO for making a fresh assessment, all the submissions of the assessee are, in any case, open, and even if there is a decision in his favour, nothing prohibits the assessee from placing reliance on the same before the AO.
Therefore, having considered the facts and circumstances of the present case in light of the decision of the Hon’ble Supreme Court cited supra, we do not find any merit in the submissions of the assessee in seeking condonation (A.Y. 2015-16) 8 of the delay of 115 days in filing the present appeal. Accordingly, the assessee's appeal is dismissed as being barred by limitation. As we are dismissing the appeal on the ground of delay, the issue raised in the ground of appeal is kept open for adjudication, if it arises in any other case.
In the result, the appeal by the assessee is dismissed. Order pronounced in the open Court on 26/11/2025