SAQUIB AHMED,PIPARIYA vs. PRINCIPAL COMMISSIONER OF INCOME TAX-1, BHOPAL, BHOPAL

आदेश / O R D E R

Per Paresh M Joshi, J.M.:

“ In view of the submission made by the assessee and after considering the totality of facts and circumstances of the case, the return income of the assessee is accepted”. That the Page 2 of 32

“Impugned Assessment Order”.

2.2 That the Ld. Pr. CIT in the exercise of power conferred upon him by virtue of section 263 of the Act by the Impugned Order set aside the “Impugned Assessment Order” u/s 263 of the Act and directed the Ld. AO to pass a fresh Assessment order after conducting proper examination, inquiry and verification on issues identified by him, after giving opportunity to the assessee of being heard and after bringing on record the relevant supporting material and evidences.

2.3 That the assessee being aggrieved by the “Impugned Order” has preferred the instant second appeal before this Tribunal and has raised following grounds of appeal in form no.36 against the “Impugned Order” which are as under:-

“1. That on the facts and circumstances of the case and in law, the Ld. Principal Commissioner of Income tax -1, Bhopal ["The PCIT"] erred in invoking provisions of section 263 of the Income Tax Act, 1961 ("the Act") and directing revision of the assessment order dated 23.11.2018 passed by the Income Tax Officer-2, Itarsi ("The AO") under section 143(3).

2. That on the facts and circumstances of the case and in law, the PCIT has erred in passing the order under section 263 on the alleged ground that the assessment order was erroneous and/or prejudicial to the interest of the revenue.

3. That on the facts and in the circumstances of the case and in law, the PCIT erred in setting aside the assessment order dated 23.11.2018 passed by the AO by invoking the provision of section 263 of the Act.

Page 3 of 32 A.Y. 2016-17 4. That on the facts and in the circumstances of the case and in law, the PCIT erred in setting aside the order as passed by the AO by invoking the provision of section 263 of the Act even when the order was passed by the AO u/s. 143(3) of the Act after conducting necessary enquiries and after due application of mind.

5. That on the facts and circumstances of the case and in law, the revision order passed under section 263 is illegal, bad in law, void ab initio, and without jurisdiction.

.”

3. Record of Hearing 3.1 That the hearing in the matter took place before this Tribunal on 05.08.2025 when the Ld. AR for and on behalf of the assessee appeared before us and interalia contended that there is a delay of 3 years in preferring the instant appeal. He pleaded that there is no separate application for condonation of delay on record as the same is not filed. That an affidavit dated 07.05.2025 is filed and placed on record of the assessee basis which it is pleaded that the “Impugned Order” u/s 263 of the Act which was passed by the Ld. PCIT, Bhopal is dated 17.02.2021.

That the instant appeal against the “Impugned Order” is required by law to be filed within 60 days and hence the instant appeal ought to have been filed by the assessee on or before 17.04.2021 however, the same was filed on 29.04.2024 before this Tribunal resulting in a delay of 3 years. In this regard it was Page 4 of 32 assessment proceedings one Shri Chandrakant Agrawal who was as “Income Tax Preparer and a Consultant at Pipariya M.P was engaged by the assessee. Shri Chandrkant Agrawal had also filed an appeal before the Ld. CIT(A) against the consequential order u/s 143(3) read with section 263 on 30.03.2022 and in form 35 his e-mail ID is reflected. It was then submitted that on 23.01.2024 the assessee received an intimation from CPC for the A.Y. 2023-24 wherein a refund due to him was adjusted against the outstanding demand. That in February 2024 the assessee then approached Shri Chanrakant Agrawal so as to understand from him the reason for such an adjustment and inquired also about the status of pending appeal before Ld. CIT(A) against the consequential order u/s 143(3) r.w.s. 263 of the Act. The assessee was informed by the said Chandrakant Agrawal that appeal’s outcome before Ld. CIT(A) against consequential order is awaited. The assessee was advised to consult one Shri Muffada Mhowwala, CA at Indore for appropriate action and for the purpose of proper representation. That the assessee in March 2024 approached Shri Muffada Mhowwala, CA at Indore and Page 5 of 32 appropriate course of action to be taken in connection with the order passed u/s 143(3) read with section 263 of the Act. That upon reviewing the matter Shri Muffada Mhowwala enquired about the revision order passed u/s 263 by Pr. CIT Bhopal and whether any appeal had been filed against the same. It was pleaded by the Ld. AR that it was at this point of time that the assessee became aware that an appeal lies against an order passed u/s 263 of the Act. It was his contention that from 17.02.2021 the date of the “Impugned Order” u/s 263 of the Act till March 2024 the assessee was unaware that an appeal lies to this Tribunal against the “Impugned Order”. The Ld. AR then contended that the assessee had not received any physical copy of the “Impugned Order” nor the same was available on the portal. It was also pleaded that any e-mail communication addressed to the assessee by the Department regarding the “Impugned Order” might have gone or routed to the spam/junk folder of his e-mail account and subsequently might have got auto deleted in accordance with auto deletion Policy of e-mail Service provider. That it was submitted by the Ld. AR that the Page 6 of 32 “Impugned Order” and that in the absence of any physical service and online visibility about the Impugned order the assessee was unable to file the instant appeal within the prescribed time limit.

The Ld. AR then stated that the assessee then submitted an application to the department on 27.03.2024 requesting for a copy of the Impugned Order which was later provided by the Department to the assessee. That after the receipt of Impugned Order the assessee approached once again Shri Muffada Mhowwala who advised the assessee to file the instant appeal and that the same was filed on 29.04.2024. It was finally pleaded that delay be condoned and appeal of the assessee be admitted. An affidavit of Shri Chandrakant Agrawal dated 07.05.2025 was too relied upon. It was also pleaded that he (Chandakant Agarwal) too was not aware whether the impugned order u/s 263 was appealable or not. For the counsel mistake assessee should not suffer it was pleaded.

3.2 Per contra Ld. DR appearing for and on behalf of the Revenue contended that affidavit of assessee dated 07.05.2025 and so also affidavit of Shri Chandrakant Agrawal, consultant dated

Page 7 of 32 There is nothing in writing except an affidavit from Shri Chandrakant Agarwal consultant that he had not advised the assessee to file an appeal against the Impugned Order u/s 263 of the Act. No written opinion of Chandrakant Agrawal advising the assessee not to file an appeal against the Impugned order u/s 263 is placed on record. Mere affidavit of Chandrakant Agarwal dated 07.05.2025 ipsofacto thus cannot be relied upon in the absence of any evidence of opinion in writing (supra). It was pleaded that no affidavit of Muffadal Mhowwala, CA who had advised further action to the assesee on the instant appeal against the “Impugned Order” is placed on record. It was submitted by the Ld. DR that the Revenue has a water tight case on issue that the instant appeal is hopelessly time barred. It was then contended that the “Impugned Assessment Order” is dated 23.11.2018, the Impugned order u/s 263 is dated 17.02.2021.

The “consequential Order” in pursuance to Impugned order is dated 28.02.2022. In this consequential order total five notice(s) were issued wherein the assessee participated. Since the assessee was aggrieved he has even preferred first appeal before

Page 8 of 32 the end of CIT(A) till date. The assessee very well knew about consequential assessment proceedings after the impugned order u/s 263, the necessary compliances were made to the five notice(s) in the consequential assessment proceedings and therefore, the contention that assessee was not aware of impugned order is highly unbelievable. It was also pleaded that counsel/consultant was unaware of the fact that whether the impugned order is appealable or not is really hard to digest. Non- receipt of hard copy of Impugned Order u/s 263 and soft copy going into spam folder are all excuses to cover the delay. The Ld.

DR has placed reliance on letter dated 28.04.2025 of ITO-2 Itarsi were in it is stated that the Impugned order u/s 263 was issued by Ld. Pr. CIT-1 Bhopal on 17.02.2021 and same was received on 26.02.2021 and that the same was served to the assessee through email dated 08.03.2021 and requisite screen short was enclosed. Therefore, the contention of Ld. AR is wrong that Impugned order was not received by the assessee. It was stated by the Ld. DR that normal path has been followed and assessee cannot turnaround.

Page 9 of 32 there is nothing about passing of the Impugned Order u/s 263 of the Act. On spam email he stated that it might have been received on spam/junk Mail but by virtue of spam mail policy of email provider it got auto deleted within 30 days. The Assessee is not a body corporate and but is an individual and case of assessee should be considered sympathetically.

3.4 Ld. DR then replied that the assessee has remained totally non-compliant u/s 263 proceedings too. The assessee has failed to show sufficient cause for the purpose of condonation of delay.

Assessee is riding on two boats which is not permissible.

3.5 Both sides have placed on record compilation of judgements in respect of their contentions with which we shall deal in our para 4 below.

3.6 On merits Ld. AR submitted that written synopsis dated 30.04.2025 be considered in event the delay is condoned.

4. Observations & findings & conclusions 4.1 We now have to decide the legality, validity and proprietary of the “impugned order” basis records of the case and the contentions canvassed before us.

Page 10 of 32 4.3 We basis records of the case and after hearing and upon examining the rival contentions are of the considered view whether the instant appeal before us against the impugned order u/s 263 of the Act in respect of which there is a delay of 3 years is liable to be condoned on ground of sufficient cause.

4.4 We are of the view that delay of 3 years is abnormal and assessee has not shown reasonable cause.

4.5 By virtue to section 253 of the Act an appeal against the “Impugned Order” u/s 263 of the Act lies before this Tribunal.

[section 253(1)(c)]. By virtue of section 253(3) of the Act every appeal under subsection (1) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee. Further by virtue of section 253(5) the appellate Tribunal may admit an appeal after the expiry of 60 days if it is satisfied that there was sufficient cause for not presenting it within that period. Therefore, the real test is whether the assessee in the instant appeal has shown “sufficient cause or not”. We basis records of the case hold that the assessee has not shown any “sufficient cause” for the Page 11 of 32 submissions.

4.6 The assessee has contended basis affidavit dated 07.05.2025 of Shri Chandrakant Agrawal a Tax consultant of Pipariya Dist:

Narmadapuram, M.P. that he had not advised the assessee that an appeal could be filed against the “Impugned order” u/s 263 of the Act. Whereas in personal hearing it was contended by the Ld. AR that the Tax consultant Shri Chandrakant Agrawal, was not aware whether the “Impugned order” u/s 263 of the Act is appealable or not. In the affidavit Shri Chandrakant Agrawal has not stated that he was not aware whether impugned order u/s 263 is appealable order or not. On the contrary he has deposed that he had advised assessee not to file an appeal against “Impugned order” u/s 263 of the Act. We thus notice sharp contradiction between what is pleaded by Ld. AR in the hearing and what the affidavit of Shri Chandrakant Agrawal in fact states. Therefore, we reject the contention of Ld. AR about mistake on part of tax consultant Shri Chandrakant Agrawal as there is inherent contradiction. The fact that in the affidavit of Shri Chandrakant Agrawal dated 07.05.2025 wherein he has Page 12 of 32 Saquib Ahmed that a separate appeal could be filed against the order passed under section 263 by the Principal Commissioner of Income Tax”, clearly goes to show that both the assessee as well as Tax consultant Shri Chandrakant Agrawal knew one undisputed fact for sure that an appeal lies against the “Impugned Order” u/s 263 of Ld. PCIT Bhopal. We, therefore, reject the contention of Ld. AR that there was a “Counsel Mistake” and hence delay should be condoned. We hold that it was to the full and complete knowledge of the assessee as well as his Tax consultant that an appeal was required to be filed against the impugned order u/s 263 of the Act which was an appealable order but the assessee choose not to file the same at that point of time. The fault is of the assessee and it is wrong on part of the assessee to state that it was mistake of his counsel. We hold that plea of mistake of counsel is a cover to seek condonation of delay an approach wholly untenable in law. The laches are clearly attributable to the assesee in choosing not to file an appeal against the “Impugned Order” at proper time and place. The Page 13 of 32 incorrect one and wrong.

4.7 Insofar as non-receipt of impugned order u/s 263 of the Act is concerned the Ld. DR has successfully demonstrated before us as and by way of a letter dated 28.04.2025 of Ld. AO that the “Impugned Order” was served upon the assessee through e-mail on 08.03.2021 and screen shot is proof in support of same.

The plea of Ld. AR that since assessee was unaware of impugned order passed u/s 263 and later made an application to obtain the same on 27.03.2024 is nothing but an after thought exercise to justify the delay when it is successfully demonstrated by Ld. DR that the “Impugned order” was served upon the assessee as early as on 08.03.2021 by the Ld. AO. The plea of e-mail going into trash and junk are false and taken up with a view to justify the delay in filing the appeal an approach wholly untenable in law.

The assessee has gone in to his plea for the delay condonation far beyond to even state that as per policy of e-mail service provider the e-mail of Ld. AO dated 08.03.2021 must have gone to trash/junk and must have got automatically deleted as per policy of e-mail service provider which mandates deletion of e-

Page 14 of 32 trash/junk. We deprecate such plea of the assessee.

4.8 We hold that plea of assessee that on advise of Tax consultant, Shri Chandrakant Agrawal he went to another CA called Shri Muffadal Mhowwala who advised him to file the instant appeal when he narrated his story to him is too wrong and false as no affidavit of Shri Muffadal Mhowwala, CA is placed on record stating that he had advised the assessee to file the instant appeal when he was sent to him by Shri Chandrakant Agrawal, the Tax consultant to explore the opportunity of proper representation before CIT(A) as appeal against the consequential order was pending for hearing and final disposal at that stage.

We therefore, hold that “alibi” is created by the assessee which has no foundational grounds in support of delay condonation.

4.9 We hold that from the record it is clear that consequent upon the impugned order u/s 263 of the Act the assessee participated in fresh assessment proceedings held before Ld. AO and eventually against the consequential assessment order he filed, an appeal which is now pending before the CIT(A) and therefore, the assessee is incorrect in stating that he became aware of Page 15 of 32 after he had made an application to department on 27.03.2024.

The fact that assesee participated in the consequential assessment proceeding itself shows that he was aware of the “Impugned Order” u/s 263 of the Act which was the foundation for the consequential assessment proceedings which he at material time choose to continue with it instead of challenging the “Impugned order” u/s 263. It is only at a later point of time he choose to challenge the same(supra) by which time period of 3 years had elapsed. Hence, we hold that Ld. DR has rightly contended that assessee is riding on two boats or horses and wants to take a chance by filing the instant appeal though belatedly an approach wholly untenable in law. We simultaneously hold that while there is no legal bar and the Assessee can proceed with both i.e. with the consequential assessment proceedings including an appeal before Ld. CIT(A) and so also by filing an appeal before ITAT challenging the legality and validity of the Impugned order u/s 263 of the Act which he has done so but there is in reality an abnormal delay of 3 years against statutory time limit of 60 days for preferring

Page 16 of 32 08.03.2021 and assessee ought to have filed an appeal before this Tribunal on or before 08.05.2021 which unfortunately has not happened and instant appeal was filed on 29.04.2024 with a delay of 3 years. The assessee thus has failed to show “sufficient cause” within the meaning of section 253(5) of the Act.

Accordingly we refuse to admit the instant appeal.

4.10 With regard to precedent cited by both the parties our analysis is as under:-

1. The Ld. AR has placed reliance on the order of ITAT,

Jaipur in case of Natthi Singh vs. ITO in ITAT

No.117/JP/2023 dated 03.05.2023 wherein the impugned order of CIT(A) was directly received in to a spam folder of AR of the assessee and there was a delay of 233 days.

Affidavit of Ld. AR was placed on record wherein it was deposed that impugned order of CIT(A) was received in spam folder. In the instant case the affidavit of Ld. AR and so also of assessee is silent with regard to the contention that e-mail under which impugned order u/s 263 was Page 17 of 32 as well as assessee are silent on this aspect. It is stated by assessee that it might have gone into spam/junk folder.

Hence assessee himself is in doubt about his assertion on spam/junk mail. Hence on facts, case is distinguishable.

In order of ITAT Pune Bench dated 06.01.2025 in case of Sarika vs. ITO ward 14(5) Pune ITANo.1776/Pun/2024 an email had gone to spam folder which contained assessment order. It was a case of delay before Ld. CIT(A). In the instant case neither the assessee nor his tax consultant in their respective affidavits have categorically stated that impugned order u/s 263 went to spam/junk folder. It is the assumption of the assessee that it might have gone into spam/junk folder and as per policy of e-mail service provided it got automatically deleted within 30 days. The facts are therefore distinguishable.

2. The Ld. AR has placed reliance on the judgment of M.P.

High Court in case of Shri Neel Kumar Ajmera vs. Pr. CIT

Indore-1 dated 01.04.2025 in of 2025 where the division Bench has held that delay was due to appellant

Page 18 of 32 was dragged into civil and criminal litigation. In view of this appellant and his family members were also harassed by various creditors and Government department. The appellant moved to Mumbai with family members. The appellant during 2018 to 2024 could not coordinate with tax consultant. Order of CIT(A) was not received by the appellant and it came to his knowledge in 2024 and thereafter appeal was filed before ITAT. The delay was 1797 days. The Hon’ble High Court therefore held that appellant has put forth sufficient cause for delay in filing appeal before ITAT. In the instant case the Revenue has successfully demonstrated before us that Impugned order u/s 263 of the Act was served to assessee on 08.03.2021and hence facts of the case are distinguishable.

vs. Dy. Commissioner of Income Tax reported in (2017) 86 taxmann.com 98 (Bombay) wherein the assessee has filed an appeal before Tribunal with delay of 2984 days by taking

Page 19 of 32 file appeal. The assessee produced affidavit of CA in support of his plea. The said affidavit was not contested by the Revenue. Delay was condoned. In the instant case Revenue has successfully demonstrated that Impugned order u/s 263 was served to the assessee on 08.03.2021 and appeal was filed on 29.04.2024. Hence facts are distinguishable.

In the instant case the assessee is contending on one hand that Impugned order was received on or before

29.04.2024 whereas the tax consultant much prior there to had not advised him to file an appeal against the Impugned order. Therefore, assessee’s arguments are not consistent.

In brief in the instant appeal on issue of delay the assessee has taken following stand:-

(i) Impugned order hard copy was received on or after March, 2024 upon application by him. (ii) Impugned order was not received by e-mail from Ld. AO on 08.03.2021 as it might have gone into trash/junk inbox.

Page 20 of 32 prior to assessee meeting with Muffadal Mhowwala had not advised the assessee that a separate appeal could be filed against the Impugned order u/s 263 of the Act.

In view of Ld. DR establishing before us that Ld. AO had served the Impugned order on the assesee’s e-mail on 08.03.2021 together with copy of screen short are all proof enough that Impugned Order was indeed served to the assessee on 08.03.2021 which fact during hearing have not been rebutted at all by Ld. AR and the assessee.

In the instant appeal revenue has contested all the contentions of the assessee including affidavit and have established service of Impugned order on 08.03.2021 by producing screen short. Hence facts of Hon’ble Bombay

High Court decision are distinguishable.

on following decisions:-

(i) Antelio Business Techologies (P) Ltd V/s ACIT reported in 2024 (767) taxmann.com.385 (Hyderabad Tribunal) and has canvassed that in this case PCIT invoking Section 263 set

Page 21 of 32 assessee initially had chosen to proceed with revision proceedings before Assessing Officer and subsequently during pending of proceedings before Assessing Officer it filed appeal challenging order under section 263 before

Tribunal with a delay of 384 days, since assessee adopted wait and see method to have best of both worlds, delay in filing appeal did not deserve to be condoned

We agree with the contention of the Ld. DR that the assessee in the instant case too is adopting “wait and see method” to have best of both the worlds, delay in filing appeal therefore does not deserve to be condoned. Facts of above case are more or less parimateria with the facts of instant case.

(ii) The Ld. DR then has placed reliance on decision in case of CSK Realtors Ltd, Hyderabad v/s ITO Ward-1(2), (Hyderabad Tribunal) wherein the assessee challenged the 263 order after a delay of 328 days, claiming lack of proper legal advice initially and a belief that the AO would decide the matter independently.

Page 22 of 32 with access to legal expertise, and its conduct reflected an attempt to "fest the waters" in the consequential assessment before raising jurisdictional issues. Relying on the SRK

Infracon ruling, the Tribunal refused to condone the delay and dismissed the appeal on grounds of limitation, again without examining the merits.

In the instant case assessee by filing instant appeal while his appeal before CIT(A) against the consequential assessment order is pending before CIT(A) is also trying to take a chance and to test waters.

(iii)The Ld. DR then placed reliance on decision in case of SRK Infraction (India) Pvt Ltd, Hyderabad v/s ITO ward 3(3), (Hyderabad Tribunal) wherein the assessee filed an appeal with a delay of 988 days against the revisional order under Section 263. While the assessee cited non-receipt of the PCIT's order email, reduced staff due to cessation of business, and the COVID pandemic, the Tribunal found these reasons not bona fide.

Page 23 of 32 should generally override technicalities, there is no mandate to condone delay in every case. Courts must examine whether the delay was due to reasons beyond the assessee's control, and in this case, it concluded the reasons were vague and unconvincing, suggesting afterthought

In para 13, the Bench specifically noted that the assessee had ample opportunity, as 10 months elapsed between the PCIT's revisional order and the AO's consequential order, and yet the assessee took no action.

Even the appeal before CIT(A) was filed over two years later.

This lack of vigilance was held fatal to the assessee's case.

The Tribunal refused to condone the delay, holding that commercial entities are expected to act diligently, and litigation cannot be prolonged indefinitely under the pretext of inadequate internal communication. The appeal was dismissed as time-barred, without examining merits.

In the instant case assessee has not demonstrated any reasons for delay which were beyond his control. The Page 24 of 32 suggesting after thought.

(iv) The Ld. DR placed reliance on judgment of Apex Court in case of UOI v/s Jehangir Byramji Jeejeebhoy reported in 2024 SCC on line SC 427 and has contended that the length of delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not from the tenor of the approach of the appellants, it appears that they want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered

Page 25 of 32 cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning, the delay question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity.

We should not keep the 'Sword of Damocles hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants.

(v).The Ld. DR has placed reliance on the judgment of Apex

Court in case of Lanka Venkateshwarlu D v/s State of AP reported in (2011)(4) SCC 363 and has contended that the concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation, Especially in cases where the Court concludes that there is no justification for the delay Whilst considering applications for condonation of delay under Section 5 of the I imitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers, All Page 26 of 32 exercised within reasonable bounds, known to the law. (vi) The Ld. DR has placed reliance on judgment of Apex Court in case of Pathapati Subba Reddy v/s Special Dy

Collector reported in 2024 SCC on line SC 513 that liberal approach cannot override statutory limitation.

(vii) The Ld. DR has placed reliance on the judgment of Apex Court in case of Lata Mata Din V/s A Narayanan reported in AIR 1996 SC 1623 that the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way.

The Ld. DR basis this Apex Court judgment contended that Chandrakant Agrawal Tax Consultant affidavit clearly stated he had not advised the assessee to file an appeal against the impugned order which mean at that point of Page 27 of 32 complete knowledge about the impugned order u/s 263 of the Act. In this context we hold that we are in agreement with the contention of Ld. AR that blame game culture resorted to by the assessee has no legs to stand.

Subsequent event described in both affidavits (supra) by virtue of which another CA Shri Mhowwala was brought to scene is an aliby with no basis as CA Shri Mhowwala affidavit is not placed on record. The so called aliby has loose chains and an unbelievable story.

(viii)The Ld. DR has also placed reliance on the judgment of MP High Court in case of State of M.P & Another v/s Hemraj

S/o Kanhaiyalal (deceased) through Legal heirs Aesarbai & others reported in 2025 MPHC-IND 6064 wherein it was observed that “length of delay is no matter, acceptability of the explanation is the only criterion, it was further held that 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 and they are meant to see that parties do not resort

Apex Court also cautioned that if the delay is occasioned by party deliberately to gain time then the Court should lean against acceptance of the explanation. The explanation should not be fanciful and concocted. The Courts while dealing with an application to condone delay should keep in mind the right accrued to other side and should deal with such application with utmost care and caution.

Basis this judgment it was contended that right of revenue accrued to them should too be considered on delay aspect. We therefore hold that rule of time limit contemplated u/s 263of filing an appeal to this Tribunal within 60 days is a must however legislature by the Act has also given a leeway to person affected that appeal can be filed beyond 60 days provided sufficient cause is shown and this Tribunal may choose to admit the appeal if it is satisfied that sufficient cause is indeed shown but it is not shown in the instant appeal as besides delay of 3 years the bonafide of assessee is not genuine and aliby is made which has no foundation an approach wholly untenable in law.

Page 29 of 32 tax consultant that due care and caution was exercised in normal course since the commencement of original assessment proceeding and their conduct was diligent etc.

In the absence of any positive averment in affidavits (supra) we hold that assessee was negligent in preferring the instant appeal within due time and hence we do not condone delay of 3 years.

4.11However, before taking any decision further on instant appeal we deem it fit and necessary to examine what assessee has to say on merits.

4.12 On merits we find that the impugned order u/s 263 of the Act requires no intervention by this Tribunal as the assessee has failed to assist the Ld. PCIT in any manner whatsoever at the material time and place. In the synopsis dated 30.04.2025 which Ld. AR wants us to take into consideration it is not stated anywhere that show cause notice dated 15.01.2021 issued by Ld. PCIT to the assessee in U/s 263 proceedings were replied by the assessee. In the absence of any assistance by the assessee

Page 30 of 32 263 of the Act basis record and correctly held the impugned assessment order to be erroneous and prejudicial to the interest of revenue. To challenge such an impugned order u/s 263 of the Act without offering any assistance to the Ld. PCIT u/s 263 proceedings and to contend for the first time before this Tribunal that the said impugned order u/s 263 of the Act is wrong and illegal is an incorrect approach and speaks volumes about conduct of the assessee. Under these circumstances we do not have any ground or material to set aside the impugned order as nothing by way of submissions by the assessee was before Ld.

PCIT. We find that save and except filling a written synopsis dated 30.04.2025 the Ld. AR has not been successfully able to establish that the “impugned order” is incorrect and wrong. It is not demonstrated that it is not proper and illegal.

Order pronounced in open court on 18.08.2025.