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Facts
The assessee filed an appeal with a delay of 375 days against the CIT(A)'s order which dismissed his appeal ex-parte. The assessee attributed the delay to his mother's illness and subsequent death, leading to emotional distress, and an issue with the communication of hearing notices.
Held
The Tribunal held that the grounds for condoning the delay were not sufficient. The death of the assessee's mother occurred before the CIT(A)'s order, and the claim of not being able to look into affairs for a year lacked evidence. The delay was not condoned as it did not meet the criteria for sufficient cause.
Key Issues
The primary issue was whether the delay in filing the appeal was for a sufficient cause, warranting condonation by the Tribunal, considering the assessee's personal circumstances and a technical issue with notice delivery.
Sections Cited
143(3), 250, 69A, 234A, 143(2)
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Income Tax Appellate Tribunal, “SMC” BENCH: BANGALORE
Before: SHRI PRASHANT MAHARISHI
This appeal is filed by Shri Prem Prakash Gupta (the assessee/appellant) for the assessment year 20178-18 against the appellate order passed by the National Faceless Appeal Centre, Delhi (NFAC) [ld. CIT(A)] dated 13.10.2023 wherein the appeal filed by the assessee against the assessment order passed u/s. 143(3) of the Income-tax Act, 1961 [the Act] dated 29.12.2019 by the ITO, Ward 6(3)(1), Bengaluru [ld. AO] was dismissed. Therefore, the assessee is aggrieved and has preferred the appeal raising the following grounds: - “ 1. The order passed by the authorities below in so far as it is against the appellant is opposed to law, equity and weight of evidence, probabilities, facts and circumstances of the case.
2. The appellant denies himself to be assessed to a total income of Rs-37,77,330/- as against the returned income of Rs.12,52,330/- for the impugned assessment year 2017-18, on the facts and circumstances of the case.
3. The learned CIT(A) ought to have provided another opportunity of hearing in the interest of natural justice before dismissing the appeal, on the facts and circumstances of the case.
4. The learned CIT(A) has failed to issue notice to the mail id mentioned in the form 35, on the facts and circumstances of the case.
5. The learned CIT(A) has failed to appreciate that the notice issued under section 143(2) of the Act is defective, invalid and bad in law on the facts and circumstances of the case.
6. The authorities below have failed to appreciate that the impugned order is passed without Jurisdiction as a valid notice under section 143(2) of the Act has not been issued and consequently, the entire proceeding is vitiated, on the facts and circumstances of the case.
7. The authorities below have failed to appreciate that it is a settled position in law that "consent does not confer jurisdiction" and accordingly, the impugned proceedings are void ab initio on the facts and circumstances of the case.
8. The learned CIT(A) is not justified in confirming the addition of Rs. 25,25,000/- being cash deposits under section 69A of the Act on the facts and circumstances of the case.
9. The learned Assessing officer was not justified in law and in fact in not considering the submissions made by the appellant explaining the source of the cash deposits, on the facts and circumstances of the case.
10. The authorities below have failed to appreciate that section 69A of the Act is not applicable to the present case and accordingly, no addition could have been made on the facts and circumstances of the case.
The appellant denies the liability to pay interest under section 234A of the Act in view of the fact that there is no liability to additional tax as determined by the learned assessing officer. Without prejudice the rate, period and on what quantum the interest has been levied are not discernable from the order and hence deserves to be cancelled on the facts and circumstances of the case.
12. The appellant craves leave to add, alter, modify, delete or substitute any or all of the grounds and to file a paper book at the time of hearing the appeal.
13. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity.”
2. The appeal was filed on 9.1.2025 whereas the order of the ld. CIT(A) dated 13.10.2023 is received by the assessee on 13.10.2023 thereby causing a delay of 375 days. The necessary defect memo stating that appeal is time barred was sent to assessee on 17.6.2025.
3. The assessee filed condonation petition on 30.5.2025 along with Affidavit of assessee. The condonation petition submits as under:-
“1. The appellant individual was assessed to income of Rs.37,77,330/- vide order dt:29.12.2019 passed under section 143(3) of the Act wherein addition of Rs.25,25,000/- was made under section 69A of the Act. The appellant being aggrieved filed an appeal before the CIT(A) on 28.01.2020.
The learned CIT(A) passed an order under section 250 of the Act on 13.10.2023 dismissing the appeal exparte.
The appellant submits that his mother was ailing from illness and he was occupied with taking care of his mother. The appellant submits that the health of his mother deteriorated and was under bed rest and that the appellant was fully occupied in taking care of his mother and could not concentrate on his business affairs.
4. The appellant submits that his mother passed away on 18.08.2023 which left the appellant emotionally distressed and the appellant could not overcome the loss for considerable amount of time. 5. The appellant submits that he received a call somewhere in December 2024 wherein it was informed that there is demand outstanding for the AY 2017-18. 6. The appellant approached a tax practitioner for the next course of action. The tax practitioner expressed his inability to file appeal against the order of the CIT(A) and advised the appellant to meet the present counsel. 7. The appellant met and sought assistance of the counsel. The counsel advised the appellant to file an appeal before the Income Tax Appellate Tribunal, Bangalore and sought for various documents. 8. It is submitted that the learned CIT(A) has sent hearing notices to the mail id ajaye78 Prediffi-nail.com whereas the mail id mentioned in form 35 is triveni.premgupta@gmail.com. Thus, the appellant was not aware of the hearing notices and consequential order passed under section 250 of the Act. 9. The appellant provided the documents as required by the present counsel and accordingly the appeal was filed before your Honours on 09.01.2025, though the due date was 31.12.2023, resulting in a delay of 375 days for the reasons mentioned above. 10. It is humbly prayed that this Hon'ble Tribunal takes a lenient and compassionate view and condone the delay of 375 days in filing the present appeal against the order of the learned Commissioner of Income-tax (appeals), NFAC passed under section 250 of the Act before this Hon'ble Tribunal and hear the same on merits for the advancement of substantial cause of justice. 11. The appellant places reliance on the decision of the Hon'ble Jurisdictional High Court in the case of CIT & Another Vs. ISRO Satellite Center, in of 2008 and other batch of appeal order dated 28/10/2011 has condoned the delay of 5 years in filing the appeal before the CIT[A], the relevant observation is at para 28 page 72 of the order.
The appellant places reliance on the decision of this Hon'ble Tribunal in the case of Smt. Shakuntala Hegde, Legal Heir of Mr. Ramakrishna Hegde Vs. ACIT, in order dated 25/04/2006 wherein the Hon'ble Tribunal has condoned the delay of 1,331 days i.e. 3 Years, 8 Months and 22 days in filing the appeal by the assessee.
The appellant places reliance on the decision of the Hon'ble High Court of Madras in the case of Commissioner of Income-tax Vs. K.S.P.Shanmugavel Nadar (1987) 30 Taxmann 133 (Madras).
The appellant places reliance on the decision of the Hon'ble Tribunal in the case of M/s. Midas Polymer Compounds Pvt Ltd Vs. ACIT in dated 25.06.2018.
The appellant places reliance on the decision of the Hon'ble High Court of Bombay in the case of Anatek Services Pvt Ltd Vs. Asst.Commissioner of Income-tax-10(1) in of 2018 dated 11.02.2022.
It is humbly submitted that if this application for condonation of delay in filing the appeal is not allowed, the Appellant would be put to great hardship and irreparable injury per contra no hardship or injury would be caused to the Respondent if this application of Condonation of delay is allowed. Reliance is placed on the decision of the Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. MST.Katiji and Others (1987) 167 ITR 471 and also in the case of Concord of India Insurance Co. Ltd., Vs Smt. Nirmala Devi and Others 118 ITR 507. Further the Appellant relies on another decision of the Hon'ble Apex Court in the case of Radha Krishna Rai Vs. Allahabad Bank & Others [2000] 9 Supreme Court Cases 733 and Commissioner of Income-tax Vs. West Bengal Infrastructure Development Finance Corporation limited (2011) 334 ITR 269 (SC).
The appellant craves leave of this Hon'ble Tribunal to file additional submission at the time of hearing of this appeal.
It is humbly prayed that this Hon'ble Tribunal takes a lenient and compassionate view and condone the delay of 375 days in filing the present appeal against the order of the learned Commissioner of Income-tax (Appeals), NFAC dated 13.10.2023 before this Hon'ble Tribunal and hear the same on merits for the advancement of substantial cause of justice.”
The ld. AR reiterated the contentions raised in the condonation petition stating that the mother of assessee passed away on 18.8.2023 which left the assessee emotionally distressed and assessee could not come out of the loss for considerable amount of time. In Dec. 2024 somebody informed that there is outstanding demand for AY 2017-18 and thereafter the assessee filed appeal on 9.1.2025 and therefore the delay caused in filing of appeal of 375 days is for sufficient cause.
The ld. DR vehemently objected to the same and submitted that condonation petition does not speak of any sufficient cause, therefore the appeal of the assessee should not be admitted. He referred to the decision of Hon’ble Supreme Court in the case of Pathapati Subba Reddy dated 8.4.2025.
We have carefully considered the condonation petition filed by the assessee. It is important to put certain time line in the perspective. As per Form 36 filed before us, the CIT(A) passed an order on 13.10.2023 which was stated to be received by the assessee also on 13.10.2023. The assessee should have filed appeal before the Tribunal within 2 months from the end of the month in which the order sought to be filed against is communicated to the assessee. In this case, it is accepted by the assessee that the order was communicated on 13.10.2023, therefore the due date for filing of appeal is 31.12.2023. The appeal was filed on 9.1.2025. We find that the cause shown by the assessee is death of mother of assessee, who passed away on 18.8.2023 . Thus the death of the mother of the assessee happened prior to passing of the appellate order by the ld. CIT(A). The claim of the assessee is that he was emotionally distressed and could not overcome such loss for considerable amount of time and suddenly in the month of Dec. 2024 i.e., almost one year after the due date of filing of appeal, he came to know on receipt of some call that there is a demand outstanding for the impugned assessment year. Thereafter he approached the counsel, who filed an appeal. The assessee did not produce any evidence to support his claim that he was not well from 13.10.2023 till Dec. 2024. It is merely an assertion without any evidence. Though the loss of parents may cause some emotional distress, but for one year, assessee could not look into his own affairs is rather strange. This is also little strange as assessee is deriving income from salary and also engaged in the business of movie production. There is no evidence that business of assessee suffered because of this for a period of one year.
In the condonation petition, the assessee has cited certain judgments with respect to condonation. We are of the view that in each of the case, sufficient cause has to be ascertained. Merely because some person obtained relief in similar matters or in their own case, it does not mean that others are also entitled to the same benefit. If the court is not satisfied, about sufficient cause in case of this assessee, it is not empowered to condone the delay.
Honourable Supreme court in 2023 INSC 885 Sheo Raj Singh (Deceased) through L.Rs. and Ors. vs. Union of India (UOI) and Ors. (09.10.2023 - SC) : MANU/SC/1098/2023 has held that :-
29. Considering the aforementioned decisions, there cannot be any quarrel that this Court has stepped in to ensure that substantive rights of private parties and the State are not defeated at the threshold simply due to technical considerations of delay. However, these decisions notwithstanding, we reiterate that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the length of delay being immaterial. Sometimes, due to want of sufficient cause being shown or an acceptable explanation being proffered, delay of the shortest range may not be condoned whereas, in certain other cases, delay of long periods can be condoned if the explanation is satisfactory and acceptable. Of course, the courts must distinguish between an 'explanation' and an 'excuse'. An 'explanation' is designed to give someone all of the facts and lay out the cause for something. It helps clarify the circumstances of a particular event and allows the person to point out that something that has happened is not his fault, if it is really not his fault. Care must however be taken to distinguish an 'explanation' from an 'excuse'. Although people tend to see 'explanation' and 'excuse' as the same thing and struggle to find out the difference between the two, there is a distinction which, though fine, is real. An 'excuse' is often offered by a person to deny responsibility and consequences when under attack. It is sort of a defensive action. Calling something as just an 'excuse' would imply that the explanation proffered is believed not to be true. Thus said, there is no formula that caters to all situations and, therefore, each case for condonation of delay based on existence or absence of sufficient cause has to be decided on its own facts. At this stage, we cannot but lament that it is only excuses, and not explanations, that are more often accepted for condonation of long delays to safeguard public interest from those hidden forces whose sole agenda is to ensure that a meritorious claim does not reach the higher courts for adjudication.
Honourable Supreme court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors. (13.09.2013 - SC) : MANU/SC/0932/2013 has laid down some principles for condonation of delay as under :-
“15. From the aforesaid authorities the principles that can broadly be culled out are:
(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
(a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.”
Therefore, we do not find any sufficient cause for condoning the delay of 375 days in filing of the appeal.
11. Accordingly appeal of the assessee stands dismissed as not admitted.
Pronounced in the open court on this 11th day of June, 2025.