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Facts
The assessee filed an appeal against the CIT(A)'s order with a 10-day delay, for which condonation was sought. The CIT(A) had dismissed the assessee's appeal *in limine* for non-prosecution, despite the assessee's claim of having submitted relevant details. The CIT(A) cited non-compliance over multiple notices for dismissing the appeal.
Held
The Tribunal condoned the 10-day delay in filing the appeal, noting that initial steps were taken within the limitation period. It held that the CIT(A) erred in dismissing the appeal solely for non-prosecution without adjudicating on merits, which is contrary to Section 250(6) of the Income Tax Act. The Tribunal set aside the CIT(A)'s order and remanded the matter for fresh adjudication on merits, providing the assessee another opportunity of hearing.
Key Issues
Condonation of delay in filing the appeal; whether the CIT(A) can dismiss an appeal solely for non-prosecution without adjudicating on merits as per Section 250(6).
Sections Cited
250(6)
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Income Tax Appellate Tribunal, Hyderabad ‘B’ Bench, Hyderabad
Before: SHRI VIJAY PAL RAO & SHRI MANJUNATHA G
ORDER
PER VIJAY PAL RAO, VICE PRESIDENT :
1. This appeal by assessee is directed against the Order dated 13.12.2024 of the learned CIT(A), Hyderabad- 11, Hyderabad, for the assessment year 2010-2011.
2 ITA.No.640/Hyd./2025 2. At the outset, there is a delay of 10 days in filing the present appeal. The assessee has filed a petition for condonation of delay which is supported by the affidavit of the assessee. The learned AR of the assessee has submitted that after receiving the impugned order of the learned CIT(A), the assessee has filed appeal on 14.03.2025 within the period of limitation. However, on the said date i.e., 14.03.2025 he has downloaded Form-36 and other related papers and sent for the signature of the assessee and, thereafter the same were uploaded on 10.04.2025 which is considered by the Registry as date of filing the appeal. Thus, the learned AR has submitted that the steps for filing of the appeal were taken well within the limitation period and only the signed Form-36 as well as other papers were uploaded on 10.04.2025. Therefore, the delay of 10 days as pointed- out by the Registry may be condoned.
3. On the other hand, the Learned DR has not seriously objected to the condonation of delay of 10 days as explained by the assessee in the affidavit.
3 ITA.No.640/Hyd./2025 4. Having considered the rival submissions and careful perusal of the contents of the affidavit, we find that the assessee has initially submitted the relevant details for filing the appeal online on 14.03.2025 which is within the period of limitation. However, Form-36 downloaded by the learned Authorised Representative of the Assessee on 14.03.2025 was signed by the assessee and same was uploaded along with other relevant papers only on 10.04.2025. Thus, having considered these facts and circumstances of the case, we condone the delay of 10 days in filing the present appeal.
The assessee has raised the following grounds of appeal :
“The order of the Appellate Commissioner is contrary to law, facts and circumstances of the case.
The Appellate Commissioner erred in dismissing the appeal in limine.
The Appellate ought not to have dismissed the appeal solely for non-appearance. Without prejudice to the above grounds.
4 ITA.No.640/Hyd./2025 4. The Appellate Commissioner ought to have decided the case on merits, and adjudicated on the additions made on account of deposits amounting to Rs. 13,90,87,050/- 5. The Appellate Commissioner ought to have decided the case on merits, and adjudicated on the additions made on account of cash deposits amounting to Rs.2,01,00,000/- 6. The reopening of the Assessment by the A.O, is on borrowed satisfaction and as such should be quashed.
Any other grounds which the Assessee may urge either before or at the time of the hearing”.
The learned Authorised Representative of the Assessee submitted that the learned CIT(A) has dismissed the appeal of the assessee in limine for non-prosecution without deciding the issues on merits. He has further submitted that the assessee filed relevant details and documents before the learned CIT(A). However, the appeal of the assessee was dismissed without considering the relevant details filed by the assessee. Thus, he has prayed that the impugned order of the learned CIT(A) may be set-aside and the matter may be remanded to the record of the learned CIT(A) for fresh adjudication on merits, after giving one more opportunity of hearing to the assessee.
5 ITA.No.640/Hyd./2025 7. On the other hand, Learned DR has submitted that the learned CIT(A) has given more than sufficient opportunities to the assessee. However, there was no compliance on behalf of the assessee. The Learned DR has fairly submitted that due to non-compliance on behalf of the assessee to as many as 09 notices issued by the learned CIT(A), the learned CIT(A) has dismissed the appeal for non- prosecution.
We have considered the rival submissions and carefully perused the impugned order of the learned CIT(A). The learned CIT(A) has given details of various notices issued and also the remarks as non-compliance on behalf of the assessee in para-6.3 of the impugned order. The learned CIT(A) thus observed that the assessee has failed to avail opportunities afforded to him. In paras-6.4 to 6.8 the learned CIT(A) has dismissed the appeal of the assessee for non-prosecution as under :
6.4. The Hon'ble MP High Court in Estate of Late Tukojirao Holkar v. CIT 223 ITR 480 (MP) has held that if a party, at whose instance the reference is made, 6 ITA.No.640/Hyd./2025 fails to appear at the hearing, or falls in taking steps for preparation of paper books so as to enable hearing of the reference, the court is not bound to answer the reference. Similar view has also been taken in the case of CIT v. Multiplan (India) Pvt. Ltd., 38 ITD 320 (Del). Following the ratio of Multiplan (India) Ltd (supra), the Chennai Tribunal has also dismissed appeal for non- prosecution in the case of M/s Helios and Matheson Information Technology Ltd v ITO in dated 5.7.2011 for A.Y.2006-07. It is pertinent to add here that the laws assist those who are vigilant and not those who sleep over their rights. This principle is embodied in the well-known maxim Vigilantibus Non Dormientibus Jura Subveniunt".
6.5. Notices u/s. 250 of the Act were issued to the appellant from 9th October, 2018 to 3rd December, 2024. As many as 9 notices were issued over a period of six years. There was neither a single line of submission nor a piece of evidence furnished by the appellant. This reflects utter disregard to the legal processes.
7 ITA.No.640/Hyd./2025 6.6. In view of the non-compliance and also in view of the fact that the statement of fact and the grounds of appeal are not substantiated by any proper statement or evidence, the appeal is liable to be dismissed.
6.7. It is pertinent to refer to the judgement of the Hon'ble Supreme Court in the Civil Appeal SIP (C) No.23809/2023 dated 24.11.2023 wherein it is held that "...if the appellant does not appear when the appeal is called for hearing it can only be dismissed for non- prosecution and not on merits. The relevant screenshot is affixed below for ready reference:-
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO /2023 (SLP (C) No.23869/2023 BERNY D'SOUZA & ORS. APPELLANT(S) VERSUS MELNEN D'SOUZA & ORS RESPONDENT(S) ORDER Leave granted, 8 ITA.No.640/Hyd./2025 The appellants herein are the plaintiffs who were the appellant in RSA No.156/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation behalf of the appellants before the High Court. Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of disnissing the appeal on merits stating that no substantial question of law was made out. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal.
9 ITA.No.640/Hyd./2025 Per contra, learned counsel appearing for the respondent supported the impugned judgment and contended that the appellants consistently failed to appear before the High Court and therefore, the High Court had no option but to pass the impugned judgment and that there is no merit in the appeal. Having heard learned senior counsel for the appellants and learned counsel for the respondents, at the outset, we extract Order XLI Rule 17 of CPC which reads as under :
17. Dismissal of appeal for appellant's default :- (1) Where on the day fixed, of on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation – Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.
The Explanation categorically states that if the appellant does not does not appear whenthe appeal is called for hearing it can only be dismissed for non-prosecution and not on merits.
10 ITA.No.640/Hyd./2025 However, the impugned judgment isa dismissal of the appeal on merits which is contrary to the aforesaid provisions and particularly the Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside. The RSA No.196/2022 is restored on the file of the High Court. The parties are at liberty to advance arguments on the merits of the case. All contentions are left open. The appeal is allowed and disposed of in the aforesaid terms. No costs. Pending application(s), if any, shall stand disposed of. …………….J. ( B.V. NAGARATHNA ) …………….J. ( UJJAL BHUYAN ) NEW DELHI, NOVEMBER 24, 2023 6.8. In view of the ratio laid down by the Hon'ble Courts referred to supra and since in the present case appellant has not responded to any of the notices issued, it has to be inferred that the appellant is not 11 ITA.No.640/Hyd./2025 interested in pursuing his appeal. In due respect to the principles of natural justice, several opportunities for presenting his case were provided to the appellant but in vain. The grounds of appeal are not adjudicated separately. In view of these facts and circumstances, the appeal is dismissed for non-prosecution.”
9. Thus, it is manifest from the impugned order that the learned CIT(A) has not adjudicated the appeal on merits and, therefore, the order passed by the learned CIT(A) is not in accordance with the provisions of sec.250(6) of the Income Tax Act, 1961. Hence, in the facts and circumstances of the case and in the interest of justice, the impugned order of the learned CIT(A) is set-aside and the matter is remanded to the record of the learned CIT(A) for fresh adjudication of the appeal of the assessee on merits, after giving further opportunity of hearing to the assessee.
In the result, appeal of the Assessee is allowed for statistical purposes.
12 ITA.No.640/Hyd./2025 Order pronounced in the open Court on the conclusion of the hearing i.e., on 27.10.2025.