DINESH DAGA,HYDERABAD vs. ITO, WARD-5(1), HYDERABAD
Income Tax Appellate Tribunal, HYDERABAD “A” BENCH: HYDERABAD
Before: SHRI MANJUNATHA G & SHRI RAVISH SOOD
PER MANJUNATHA, G.
This appeal has been filed by the assessee against the order of the learned Commissioner of Income Tax
(Appeals)-National Faceless Appeal Centre [in short “NFAC],
Delhi, relating to assessment year 2012-2013. 2. At the very outset, there is a delay of 539 days in filing the appeal before the Tribunal. The Assessee has filed affidavit explaining the reasons for not filing the appeal
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within the prescribed time limit before the Tribunal, which are as under :
“AFFIDAVIT
I, Dinesh Daga, son of Sri Prem Ratan Daga aged about 44
years, resident of H.No.4-8-831, Gowliguda, Hyderabad 500 012
do hereby solemnly affirm and state as under.
I am the appellant herein and as such I know the facts of the case. For the assessment year 2017-13, 1 filed the return of income originally on 8.9.2012
admitting an income of Rs.5,40,570/- which is inclusive of income from business of Rs.4,03,539/-. The case was re-opened by issued of a notice u/s 148 of the 1.T.Act on 29.3.2019. In response to the said notice, I filed the return of income admitting the same income as was admitted in the return of income filed originally. The Assessing officer completed the assessment u/s 143(3) r.w.s. 147 of the I.T.Act vide order dated 21.12.2019. While doing so, the Assessing officer made an addition of Rs.9,68,184/ on the ground that the sale consideration received on sale of penny stock scrip of VMS Industries Liinited represents income from other sources. While coming to such conclusion, the Assessing officer did not consider the fact that the trading done was only speculation and the actual amount received was only
Rs.43,832/- and that the entire sale consideration cannot be added.
Aggrieved with the order of assessment, I filed an appeal before the learned CIT (Appeals) on 21.12.2019. The said appeal was disposed vide order dated 13.09.2022. The order was uploaded in the Income-tax portal and was not served physically.
The online Income-tax proceedings are unknown to me. I have no 3
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knowledge of such a procedure to verify the Portal and view the orders/notices of the Income-Tax authorities. During the relevant period i.e. September, 2022, my father-in-law Sri Nanda Kishore
Darak, aged about 62 years was admitted in Kulkarni Endo
Surgery Institute & Reconstructive Urology Centre, Pune,
Maharastra. Copy of the medical record is annexed. Since the said person has no male assistance in his family, I had to accompany him during the entire period of his medical treatment locally and in Pune. I was not accessible locally to the office of the Chartered Accountant. Thereafter, the office of the Chartered
Accountant did not keep track of the impending action against the order of the learned CIT (Appeals). The matter has come to surface when the Income-Tax department passed an order u/s 271(1)(c) of the I.T. Act on 20.2.2024 and this has come to the knowledge of the assessee in the second week of March, 2024..
Copy of the penalty order is annexed. Thereafter, the appellant approached the Chartered Accountant towards end of April, 2024
and got the appellate order of the Ld. CIT (Appeals) down loaded and approached the Advocate for further action. As advised by the Advocate, the appeal was got prepared and filed before the Hon'ble ITAT on 4.5.2024. There was a delay of 539 days. The delay in filing the appeal is for the reasons submitted above which are beyond the control of the appellant and not intentional.
What is stated above is true to the best of my knowledge and belief.”
Sri S. Rama Rao, Advocate-Learned Counsel for the Assessee referring to the affidavit filed by the assessee submitted that, although, there is a delay of 539 days in 4 ITA.No.472/Hyd./2024
filing the appeal before the Tribunal, but, the said delay is neither intentional nor for want of any undue benefit, but, purely beyond the control of the assessee. Learned Counsel for the Assessee further referring to the affidavit filed seeking for condonation of delay of 539 days in filing the appeal before the Tribunal submitted that, the said delay has been occurred due to the circumstances beyond the control of the assessee and it is neither intentional nor for any undue benefit. He further submitted that, the order passed by the learned CIT(A) was uploaded in the Income
Tax Portal and was not served physically and that, the assessee has no knowledge of such a procedure to verify the Portal. Further, his father-in-law Sri Nanda Kishore Darak was admitted on Kulkarni Endo Surgery Institute and Reconstructive Urology Centre, Pune for medical treat and since he has no male assistance, the assessee constrained to proceed to Pune to assist his father-in-law and, therefore, he was not accessible locally to the office of the Chartered
Accountant.
He submitted that, due to the above circumstances, he could not concentrate in income tax
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matters and the matter has come to surface when the Income Tax Department passed penalty order dated
20.02.0224 u/sec.271(1)(c) of the Income Tax Act, 1961. Thereafter, the assessee has approached his Chartered
Accountant and filed the present appeal before the Tribunal with a delay of 539 days. The Learned Counsel for the Assessee pleaded that the delay in filing the appeal is neither willful nor wanton, but, due to the circumstances beyond the control of the assessee and there was a ‘sufficient cause’ for the delay. He, therefore, submitted that, the delay of 539 days in filing the appeal before the Tribunal may please be condoned in the interest of justice.
Sri Posu Babu Alli, Sr. AR for Revenue, on the other hand strongly opposed for condonation of delay and submitted that, the assessee could not explain reasons for delay in filing appeal before the Tribunal with ‘sufficient and reasonable cause’ and submitted that, the reasons explained by the assessee are general in nature. He, therefore, submitted that, the delay condonation petition
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filed by the assessee should be dismissed in the interest of justice.
We have heard both the parties and considered relevant reasons given for condonation of delay. We find that, reasons explained by the assessee in it’s affidavit for the delay in filing the appeal before the Tribunal within the prescribed date, are vague and general in nature and the assessee has failed to show ‘sufficient and reasonable cause’ for condonation of delay. We further observe that, during the course of assessment proceedings and during the appellate proceedings before the learned CIT(A) also, the assessee could not substantiate his case by producing necessary documentary evidence as called for. Therefore, the Assessing Officer made the addition which has been sustained by the learned CIT(A). This shows the negligent attitude of the assessee in prosecuting it’s case before the lower authorities. Further, the reasons explained by the assessee for not filing the appeal before the Tribunal within the time, are vague and general in nature which shows the lackadaisical approach of the assessee in filing the appeal
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before the Tribunal. Further, the assessee has failed to show
‘sufficient and reasonable cause’ which are beyond the control of the assessee that are prevented in not filing the appeal before the Tribunal within the prescribed period.
Further, the argument of the appellant that, appeal could not be filed due to the circumstances beyond the control of the assessee, is not convincing to us going by the conduct of the assessee and facts present before the Tribunal. No doubt, it is an admitted legal position of law from the decision of various Courts including the decision of Hon’ble Supreme Court in the case of Collector, Land Acquisition vs., MST. Katiji & Ors. [1987] 167 ITR 471 (SC) that, generally, the Courts have adopted a very liberal approach in construing the phrase ‘sufficient cause’ used in section 5 of the Limitation Act, in order to condone the delay, to enable the Courts to do substantial justice and apply law in a meaningful manner, which subserves the ends of justice. The Courts further noted that, in adhering the liberal approach in condoning the delay for ‘sufficient cause’ ordinary litigant does not stand benefit by lodging an 8 ITA.No.472/Hyd./2024
appeal late and it is not necessary to explain every day’s delay in filing the appeal and since, sometimes refused to condone the delay, result in thrown out a meritorious matter. Therefore, it is, in the interest of justice that, cause of substantial justice should be allowed to prevail upon technical consideration and if the delay is not deliberate, it should be condoned. Notwithstanding the above, howsoever, liberal approach is adopted in condoning the delay, existence of ‘sufficient cause’ for not filing the appeal in time, is a condition precedent for exercising the discretionary power of the Court to condone the delay. The phrases ‘liberal approach’, ‘justice-oriented approach’ and cause for the advancement of ‘substantial justice’ cannot be employed to defeat the law of limitation so as to allow stale matters or as a matter-of-fact dead matter to be revived and re-opened by taking aid of Section 5 of the Limitation Act.
Therefore, it must always be borne in mind that, while construing ‘sufficient cause’ in deciding an appeal under section 5 of the Limitation Act, that on the expiry of the period of limitation prescribed for filing the appeal,
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substantive right in favour of the appellant accrues and this right should not be lightly disturbed.
The law of limitation is founded on public policy. It is enshrined in the legal maxim "interest reipublicae ut sit finis litium" i.e., it is for the general welfare that, the period of limitation be put to litigation. The object is to, put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. Every public policy requires that, there should be an end to the litigation, otherwise, it would be a dichotomy, if the litigant is made immortal vis-a-vis the right in parties i.e., human being were mortals. Therefore, considering the importance of limitation provide under the statutes must be understand in this context. The Income Tax Act, 1961 provided for limitation for filing appeals before various authorities including the Tribunal. Further, the Act has also provided a discretionary power to the Authorities for condoning the delay, if ‘sufficient cause’ is made out with reasonable explanation. Therefore, while condoning the delay, the Authorities must keep in mind the 10 ITA.No.472/Hyd./2024
importance of limitation provided under various statutes and the discretionary power conferred by the said statute keeping in mind the phrase ‘sufficient and reasonable cause’.
In the present case, going by the affidavit filed by the assessee for explaining the reasons, the assessee claims that, it could not file the appeal since the order was uploaded in the Income Tax Portal and he has no knowledge to visit Poral and that, his father-in-law was admitted in hospital at Pune who has no male assistance and, therefore, he had not option, except, to assist his father-in-law at Pune and was away from the local station to consult Chartered Accountant for filing the appeal before the Tribunal are not convincing and the said reasons given by the assessee are vague and general in nature, without any substance and failed to take timely steps to file the appeal before the Tribunal and, therefore, the argument of the assessee that due to the above reasons, the appeal before the Tribunal could not be filed within the time, is not acceptable. Further, in our considered view, the ‘sufficient
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cause’ for condonation of delay under section 5 of the Limitation Act is, a cause that prevents an appellant from filing the appeal or application within the prescribed time limit and is beyond their control and not due to negligent or inaction. In the present case, going by the facts available on record, it is purely on account of inaction or negligence of the assessee appeal could not be filed within the time allowed under the Act and this fact is further strengthened by the conduct of the assessee before the authorities below where the assessee did not appeared before the learned
CIT(A) when the case was listed for hearing. Therefore, we are of the considered view that, the reasons given by the assessee for the delay in filling of the appeal, does not come under ‘sufficient cause’ and for this reason, the delay of 539
days in filing appeal cannot be condoned.
At this stage, it is relevant to consider the Judgment of Hon’ble Supreme Court in the case of Pathapati Subbareddy (died) reptd. by his L.Rs & Ors. vs., The Special Deputy Collector-(LA) in Special Leave Petition (Civil) No.31248 of 2018 vide order
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dated 08.04.2024 wherein the Hon’ble Supreme Court after considering the provisions of sec.3(1) Secs.4 to 24 of the Limitation Act has refused to condone the delay and dismissed the SLP filed by the assessee and uphold the order of the Hon’ble High Court Andhra Pradesh High Court in dismissing the appeal on account of delay. The Hon’ble
Supreme Court while dismissing the SLP, after considering the various judicial precedents on the subject matter of condonation of delay, noted that, “where a litigant could not explain the ‘sufficient cause’ which means adequate, enough reasons which prevented him to approach the Court within the period of limitation and could not properly, satisfactorily and convincingly explained the delay to the Court/Tribunal,
Court’s has no power to condone such delays”. The Hon’ble
Supreme
Court further noted that,
“the statutory provisions under Limitation Act may cause hardship or inconvenience to a particular party, but, the Court has no choice, but, to enforce it giving full effect to the same by quoting the legal maxim dura lex sed lex which means “the law is hard but it is the law", stands
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attracted when there were negligence/failure to exercise due diligence etc., and accordingly dismissed the SLP of the appellants in the aforesaid case”.
Further, the Hon’ble Supreme Court yet in an another case Balwant Singh (Dead) vs., Jagdish Singh & Ors.
in Civil Appeal No.1166/2006 reported in [2010] 8
SCC 685 in para-16 very clearly held as under :
“16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must
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essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.”
In the present case, admittedly, although, the assessee has filed his return of income for the year under consideration admitting net taxable income of Rs.5,40,565/-, but, failed to furnish information with respect to trading in shares of penny stock scrip of M/s. VMS Industries Ltd., to the tune of Rs.9,68,184/- vide scrip no.533427 during the financial year relevant to assessment year 2012-2023 under consideration. Further, the assessee could not explain the case with relevant evidences to prove that, the sum of Rs.9,68,184/- is not net sale consideration on sale of penny stock scrip of M/s. VMS Industries Ltd., before the Assessing Officer which is evident from the observation of the Assessing Officer, has treated the sum of Rs.9,68,184/- as net sale consideration on sale of penny stock scrip of M/s. VMS Industries Ltd. Before the learned CIT(A), the assessee did not appear despite issue of notices on five occasions. Further,
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once again the assessee has shown negligence in filing appeal before the Tribunal which is evident from delay of 539 days in filing the appeal before the Tribunal.
From the conduct of the assessee right from filing of appeal before the learned CIT(A) and the Tribunal, the assessee has shown negligence. Therefore, from the above conduct of the assessee, it appears that, the reasons given for delay in filing of the appeal in their affidavit dated 24.01.2025 is not bonafide. As we have already stated in earlier part of this order that, the Hon’ble Supreme Court in the case of Balwant Singh
(Dead) vs., Jagdish Singh & Ors. (supra), has clearly held that, Court must also take into account conduct of the parties, bonafide reasons for condonation of delay, whether such day could easily be avoided by the applicant acting with normal care and caution. In the present case, going by the facts available on record, the appellant could have avoided the delay in filing of the appeal had it been shown little care and caution in the income tax matters. Since the appellant has shown
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casual approach and negligence in pursuing their case before the Authorities including filing appeal before the Tribunal, in our considered view, the reasons given by the appellant for delay in filing of the appeal cannot be condoned for the said reasons.
Further, u/sec.253(5) of the Income Tax Act, 1961, such powers can be exercised only upon showing of ‘sufficient cause’ preventing the assessee from filing the appeal within the prescribed period. In the present case, the delay involved is 539 days which is highly inordinate. The reasons adduced by the assessee are general in nature and did not inspire the confidence. The explanation lacks specific dates, supporting evidences or cogent material to demonstrate bonafides. It is well settled law by the decision of Hon’ble Supreme Court yet in another decision in the case of O/o. Chief Post Master General & Ors. vs., Living Media India Ltd., & Anr. [2012] 348 ITR 7 (SC) that, Law of Limitation has to be applied with all its rigor and liberal approach cannot be extended to cases of gross negligence or 17 ITA.No.472/Hyd./2024
inaction. In this view of the matter and considering the facts and circumstances of the case, we find that, the assessee has failed to explain delay and the circumstances beyond the control of the assessee in not filing the appeal before the Tribunal within the prescribed period with ‘sufficient and reasonable cause’.
Therefore, by respectfully following the Judgments of Hon’ble Supreme Court in the cases of Pathapati Subbareddy (died) reptd. by his L.Rs &
Ors. vs., The Special Deputy Collector-(LA) (supra);
Balwant Singh (Dead) vs., Jagdish Singh & Ors.
(supra) and O/o. Chief Post Master General & Ors. vs.,
Living Media India Ltd., & Anr. (supra), we are disinclined to condone the delay of 539 days in filing the appeal before the Tribunal and accordingly, the appeal of the assessee is dismissed in limine as un-admitted.
In the result, appeal of the assessee is dismissed in limine.
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Order pronounced in the open Court on 22.08.2025. [RAVISH SOOD]
[MANJUNATHA G]
JUDICIAL MEMBER
ACCOUNTANT MEMBER
Hyderabad, Dated 22nd August, 2025
VBP
Copy to 1. Sri Dinesh Daga, 4-8-831, Gowliguda, Hyderabad.
PIN – 500 012. Telangana.
The Income Tax Officer, Ward-5(1), I.T. Towers, Hyderabad. 3. The Pr. CIT, Hyderabad. 4. The DR ITAT “A” Bench, Hyderabad. 5. Guard File.
//By Order//
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