FLURYS SWISS CONFECTIONERY PVT. LTD.,(NOW KNOWN AS APEEJAY TEA LTD.,),KOLKATA vs. DCIT, CIRCLE 8(1),, KOLKATA
What did the Tribunal hold?
The Tribunal condoned the delay in filing the appeal, citing the need to advance substantial justice. The CIT(A)'s order, which was not on merits, was set aside.
What were the facts?
The assessee's appeal before the CIT(A) was dismissed for non-prosecution. The assessee then filed an appeal before the ITAT, which was time-barred by 541 days. The assessee sought condonation of delay, citing a merger and prolonged legal processes.
What were the issues?
Whether the delay in filing the appeal should be condoned, and whether the appeal should be remitted back to the CIT(A) for a fresh adjudication on merits.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: SHRI PRADIP KUMAR CHOUBEY & SHRI RAKESH MISHRA, ACOUNTANT MEMBER
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA BEFORE SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER AND SHRI RAKESH MISHRA, ACOUNTANT MEMBER I.T.A. No.1084/KOL/2026 (Assessment Year: 2017-18) Flurys Swiss Confectionery Pvt. Ltd., DCIT, (Now known as Appejay Tea Ltd.), Vs. Circle – 8(1), 18, Park Street, Kolkata – 700071, Kolkata West Bengal [PAN: AAACF3760D] (Appellant) .. (Respondent) Appellant by : Shri Manish Tiwari, FCA Respondent by: Shri Sanjib Kumar Paul, Sr. DR Date of Hearing 30.06.2026 Date of Pronouncement 06.07.2026
O R D E R PER PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the order dated 29.07.2024 of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “ld. CIT(A)”) passed u/s 250 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for the assessment year (A.Y.) 2017–18.
At the very outset, it appears from the report of the Registry that appeal is time barred of 541 days. The assessee has filed a condonation delay petition with supporting affidavit. The affidavit filed by the assessee is hereinbelow:
“I, Asesh Jyoti Dutta Dutta son of late Mukul Kumar Dutta and residing at 17357 Jodhpur Park, Flat no-C/2 Kolkata-700068 being the director of Flurys
ITA Nos.1084/Kol/2026/AY 2017-18 Flurys Swiss Confectionery Pvt. Ltd. vs. DCIT Swiss Confectionery Pvt. Ltd. [now known as Apeejay Tea Ltd.] do hereby solemnly affirm on oath and declare as follows: - 1) That the order under Section 250 of the Income Tax Act, 1961, was passed on 29.07.2024 for the assessment year 2017-18. Accordingly, the due date for filing further appeal before the Hon'ble ITAT, Kolkata was 30.09.2024. However, due to the following reasons, the preparation and filing of the appeal was delayed by 540 days and the appeal could not be filed within the due date. 2) That the appeal against the assessment order u/s 143(3) dated 07.12.2019 for the AY 2017-18 was filed on 07.01.2020. 3) That subsequently, the appellant company Flurys Swiss Confectionery Private Ltd (PANAAACF3760D) was merged with Apeejay Tea Limited (PAN AAECA1925D) with effect from 01/04/2019 as per of Hon'ble National Company Law Tribunal at Kolkata order no- CP/CAA/130/KB/2021 dated 02/12/2021. 4) That due to the prolonged legal process in the National Company Law Tribunal, there is unintentional and inadvertent delay in filing of appeal before the Hon'ble ITAT 5) Subsequently, the management of the Apeejay Tea Ltd. took control of the assets and liabilities of the company and gone through the assessment order and CIT(A) order etc. and consulted with the tax consultant for remedies who suggested for filing of appeal before the Hon'ble ITAT, Kolkata immediately. 6) Accordingly, the finalized memo of appeal and grounds etc are presented today for your kind consideration. 7) In these circumstances, it is respectfully prayed that your good self may kindly accept the appeal by condoning the delay of about 540 days under the discretionary powers vested in your Honours and allow the appellant to get the benefit of justice. I further declare that I am acquainted with day-to-day activities of business of M/s. Flurys Swiss Confectionery Pvt. Ltd. [now known as Apeejay Tea Ltd.] and I am competent to make the statements made at Sl. 1 to 7 which are true and correct to the best of my knowledge and belief.” 3. On the point of limitation we have gone through a judgment of Apex Court passed in case of Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC
ITA Nos.1084/Kol/2026/AY 2017-18 Flurys Swiss Confectionery Pvt. Ltd. vs. DCIT 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]:
"... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."
In N.Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123], this Court held: 5."It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. 2. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice...... Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. 3. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.”
ITA Nos.1084/Kol/2026/AY 2017-18 Flurys Swiss Confectionery Pvt. Ltd. vs. DCIT 4. Going over the contents of condonation petition and considering the apex court judgment the delay is hereby condoned and we admit the appeal for hearing.
The facts of the case in brief are that the assessee is being a company, filed its return of income on 31.10.2017, declaring total income of Rs.3,34,94,930/-. The case of the assessee was selected for scrutiny, notices u/s 143(2) and 142(1) of the Act were issued. The assessee made submission in response to the notices. Assessing Officer (In short, ‘the AO’) after going over the submission and documents had completed the assessment and passed order u/s 143(3) of the Act, determining total income of Rs.3,40,21,360/- under the provisions of section 115JB of the Act.
Aggrieved by said order, the assessee preferred appeal before the ld. CIT(A), wherein the appeal of the assessee has been dismissed for want of prosecution as there was non-compliance on behalf of the assessee.
Being aggrieved, dissatisfied, the assessee preferred appeal before us. The learned Authorized Representative (ld. AR) instead of arguing on merit of the case, has only prayed that appeal of the assessee be remitted back to the file of ld. CIT(A) as the order passed by the ld. CIT(A) is not on merit rather he dismissed the appeal when the assessee failed to make compliance before him. The ld. AR prayed that an opportunity should be given to the assessee to place his case before the ld. CIT(A).
Contrary to that ld. Sr. DR supports the impugned order, but he did not raise any objection in remitting the appeal of the assessee to the file of ld. CIT(A).
ITA Nos.1084/Kol/2026/AY 2017-18 Flurys Swiss Confectionery Pvt. Ltd. vs. DCIT 9. Upon hearing the submission of the ld. Counsel of the respective parties and on perusal of the order, we find that ld. CIT(A) has dismissed the appeal of the assessee when there was non-compliance of the notices issued to the assessee. The order was not passed on merits. Keeping in view of above facts and considering the submission made by assessee and for the interests of justice, we remit the appeal of the assessee to the file of ld. CIT(A) with a direction to pass fresh order after hearing the assessee. The assessee is directed to co-operate in the appellate proceedings. The order passed by the ld. CIT(A) is set-aside and appeal is remanded to the file of ld. CIT(A) for fresh adjudication. In the result, appeal of the assessee is allowed for statistical purposes. 10.
The order is pronounced in the open Court on 06/07/2026.
Sd/- Sd/- (Rakesh Mishra) (Pradip Kumar Choubey) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated: 06/07/2026 SAMANTA आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to: 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. संबं�धत आयकर आयु�त / Concerned CIT आयकर आयु�त(अपील) / The CIT(A) 4. 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण,/ DR, ITAT, Kolkata 6. गाड� फाईल / Guard file
// TRUE COPY // BY ORDER,
Asstt. Registrar, ITAT, Kolkata
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