SHIV TRADING CO,MUMBAI vs. INCOME-TAX OFFICER-25(1)(2)/ CURRENT JURISDICTION - INCOME-TAX OFFICER - 31(2)(1), MUMBAI, MUMBAI

ITA 5090/MUM/2026Status: DisposedITAT Mumbai28 July 2026AY 2009-104 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that once an appellate authority declines to condone delay, it cannot adjudicate the appeal on merits. However, since a subsequent appeal on the same assessment order was already sub-judice, the present appeal was dismissed as infructuous.

What were the facts?

The assessee filed an appeal before the CIT(A) which was rejected for condonation of delay. The assessee then filed an electronically filed appeal challenging the same assessment order. The Tribunal noted that the original physical appeal was filed within the prescribed limitation period.

What were the issues?

Whether an appeal can be decided on merits after rejecting the condonation of delay. Whether to dismiss an appeal as infructuous when a subsequent appeal on the same issue is pending.

Which sections of the Income-tax Act were involved?

Section 250,Section 253(5)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES, MUMBAI

Before: HON’BLE NARENDER KUMAR CHOUDHRY & HON’BLE MAKARAND VASANT MAHADEOKAR

For Appellant: Shri Deepak Jain, Ld. A.R

For Respondent: Shri Pravin Salunkhe, Ld. Sr. D.R

Pronounced: 28.07.2026

INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI BENCH: H (SMC) BEFORE HON’BLE NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER AND HON’BLE MAKARAND VASANT MAHADEOKAR, ACCOUNTANT MEMBER ITA No.5090/MUM/2026 िनधा�रण वष�/Assmt. Year: 2009-10 Permanent Account Number: AABFS 6594 E M/s. Shiv Trading Co. The Income Tax Officer, Ward-25(1)(2) Thanaz Building, Current Jurisdiction – The Old Nagardas Road, Income Tax Officer, Andheri East S.O., Ward-31(2)(1), Mumbai, Room No.254D, Vs. Maharashtra – 400069 Kautilya Bhavan, Bandra Kurla Complex, Mumbai, Maharashtra – 400051

(अपीलाथ� / Appellant) (��थ� / Respondent)

Assessee represented by: Shri Deepak Jain, Ld. A.R. Revenue represented by: Shri Pravin Salunkhe, Ld. Sr. D.R. Date of conclusion of hearing: 28.07.2026 Date of pronouncement: 28.07.2026 आदेश / ORDER PER: NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER:

This appeal has been preferred by the Assessee against the order dated 06.12.2024, impugned herein, passed by the National Faceless Appeal Centre (NFAC)/Ld. Commissioner of Income Tax (Appeals) (in short, “Ld. Commissioner”) u/s 250 of the Income Tax Act, 1961 (in short, “the Act”), for the A.Y. 2009-10.

We observe from the record that the present appeal, filed in physical form, challenges the impugned order dated 06.12.2024 passed by the Ld. Commissioner in the Assessee’s appeal filed in physical form. The said appeal emanates from the assessment order dated 01.09.2016 framed u/s 143(3) r.w.s. 147 of the Act.

2.1 The Ld. Counsel draws our attention to Form No. 35 and submits that the appeal before the Ld. Commissioner was filed on 03.10.2016, which is also reflected in the covering letter dated 19.09.2016. However, the Ld. Commissioner, in the impugned order, observed as under:

“The request for condonation of delay is rejected. The reason stated by the Assessee for condonation of delay was not satisfactory.” 3. In our considered view, once the appellate authority declines to condone the delay, it is not open to it to proceed further and adjudicate the issues raised in the appeal on merits. This proposition is supported by various judicial precedents, including the judgment of the Hon’ble Madras High Court in Centre for Individual & Corporate Action (CICA) v. Assistant Commissioner of Income Tax, Business Circle XII, Chennai [(2016) 66 taxmann.com 346 (Madras)], wherein it is held that once the appeal itself is not entertained on account of delay, there is no question of deciding the issues raised therein on merits. For brevity and ready reference, the relevant conclusion of the Hon’ble High Court is reproduced as under:

“10. Even at the very outset we find that the procedure adopted by the Tribunal is highly prejudicial to the interests of the appellant- Assessee inasmuch as the Tribunal having decided not to proceed with the matter on the ground of condonation of delay, cannot unilaterally decide the appeals on the merits, more so when the appellant-Assessee was not given proper opportunity to contest the matter in the main appeals on the merits. The order of the Tribunal is also not in consonance with section 253(5) of the Income-tax Act. Section 253(5) of the Income-tax Act mandates that an appeal should be admitted before ever an order is passed on the merits. Once the appeal itself is not entertained, the question of going into the merits of the matter does not arise. We, therefore, find that the order of the Tribunal deciding the appeals of the Assessee on the merits, after dismissing the appeal itself on the question of delay, is an error apparent on the face of the record and that the order passed is without jurisdiction since when there is no appeal, there is no question of deciding the issue raised in the appeal on the merits.”

The Ld. Counsel draws our attention to the subsequent order dated 05.03.2026 passed by the Ld. Commissioner in the electronically filed appeal dated 12.10.2018, challenging the same assessment order dated 01.09.2016. We observe that the subsequent order is detailed, whereas the impugned order dated 06.12.2024 prima facie appears to be cryptic.

Though the electronic appeal was filed belatedly, the Assessee’s earlier appeal filed in physical form on 03.10.2016 was within the prescribed period of limitation, as prima facie supported by Form No. 35 and the covering letter placed on record. Therefore, the physical appeal cannot be treated as belated.

Since the subsequent order dated 05.03.2026, arising from the same assessment order, is already sub-judice before the Tribunal in ITA No. 5156/Mum/2026, thus to avoid multiplicity of proceedings, we deem it appropriate to dismiss the present appeal as infructuous.

6.1 However, we clarify that the Assessee shall be entitled to the benefit of limitation reckoned from 03.10.2016, being the date, on which the appeal was first filed in physical form before the Ld. Commissioner.

In the result, the Assessee’s appeal is dismissed as infructuous.

Order pronounced in the open court on 28.07.2026. Sd/- Sd/- MAKARAND VASANT MAHADEOKAR NARENDER KUMAR CHOUDHRY ACCOUNTANT MEMBER JUDICIAL MEMBER (Ankit Swarnkar) Private Secretary

Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench

//True Copy// By Order

Dy/Asstt. Registrar, ITAT, Mumbai.

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