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

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"clean_text": "आयकर अपीलीय अधिकरण, इंदौर न्यायपीठ, इंदौर\nIN THE INCOME TAX APPELLATE TRIBUNAL\nINDORE BENCH, INDORE\nBEFORE SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT MEMBER\nAND\nSHRI PARESH M. JOSHI, JUDICIAL MEMBER\nITA No. 402/Ind/2024\nAssessment Year: 2016-17\nSaquib Ahmed,\nH.No.147, Ward No.13,\nAbdullah Market,\nNehru Ward, Pipariya\nDistrict -Hoshangabad\n(Assessee/Appellant)\nPr. CIT-1\nBhopal\nबनाम/\nVs.\n(Revenue/Respondent)\nPAN: AKLPA7217L\nAssessee by Shri Milind Wadhwani, AR\nRevenue by Shri Anoop Singh, CIT-DR\nDate of Hearing 05.08.2025\nDate of Pronouncement 18.08.2025\nआदेश/ORDER\nPer Paresh M Joshi, J.M.:\nThis is an appeal filed by the Assessee Under Section 253 of\nthe Income Tax Act, 1961 (hereinafter referred to as the Act for\nsake of brevity) before this Tribunal. The assessee is aggrieved by\nthe order passed u/s 263 of the Act by Pr. CIT, Bhopal dated\n17.02.2021 which is hereinafter referred to as the “Impugned\nOrder\". The relevant Assessment Year is 2016-17 and the\ncorresponding previous year period is from 01.04.2015 to\n31.03.2016.\n2.\nFACTUAL MATRIX\n2.1 That as and by way of an assessment order bearing\nNo.ITBA/AST/S/143(3)/2018-19/1013773378(1)\ndated\n23.11.2018 the total income of the assessee was computed and\nassessed at Rs.18,76,940/- including LTCG of Rs.8,79,719/- u/s\n143(3) of the Act. The assessee had filed the return of income for\nRs.18,76,940/- and other exempt income of Rs.90,65,981/-. The\ncase was selected for scrutiny. Notice(s) u/s 143(2) and 142(1)\nwere issued from time to time. The assessee made a detailed\nsubmission along with the documentary evidences regarding\nsalary income, capital gain calculation deductions under chapter\nVI-A, etc. The Ld. AO in the aforesaid assessment order held\nthat:-\n//\nIn view of the submission made by the assessee and after\nconsidering the totality of facts and circumstances of the\ncase, the return income of the assessee is accepted”. That the\naforesaid assessment order is hereinafter referred to as the\n“Impugned Assessment Order”.\n2.2 That the Ld. Pr. CIT in the exercise of power conferred upon\nhim by virtue of section 263 of the Act by the Impugned Order set\naside the “Impugned Assessment Order” u/s 263 of the Act and\ndirected the Ld. AO to pass a fresh Assessment order after\nconducting proper examination, inquiry and verification on\nissues identified by him, after giving opportunity to the assessee\nof being heard and after bringing on record the relevant\nsupporting material and evidences.\n2.3 That the assessee being aggrieved by the “Impugned Order”\nhas preferred the instant second appeal before this Tribunal and\nhas raised following grounds of appeal in form no.36 against the\n\"Impugned Order” which are as under:-\n\"1. That on the facts and circumstances of the case and in law, the Ld.\nPrincipal Commissioner of Income tax -1, Bhopal ["The PCIT"] erred in\ninvoking provisions of section 263 of the Income Tax Act, 1961 ("the Act") and\ndirecting revision of the assessment order dated 23.11.2018 passed by the\nIncome Tax Officer-2, Itarsi ("The AO") under section 143(3).\n2. That on the facts and circumstances of the case and in law, the PCIT has\nerred in passing the order under section 263 on the alleged ground that the\nassessment order was erroneous and/or prejudicial to the interest of the\nrevenue.\n3. That on the facts and in the circumstances of the case and in law, the PCIT\nerred in setting aside the assessment order dated 23.11.2018 passed by the\nAO by invoking the provision of section 263 of the Act.\n4. That on the facts and in the circumstances of the case and in law, the PCIT\nerred in setting aside the order as passed by the AO by invoking the\nprovision of section 263 of the Act even when the order was passed by the\nAO u/s. 143(3) of the Act after conducting necessary enquiries and after due\napplication of mind.\n5. That on the facts and circumstances of the case and in law, the revision\norder passed under section 263 is illegal, bad in law, void ab initio, and\nwithout juri iction.\n6. The appellant craves leave to add, amend, alter vary and or withdraw any\nor all the above grounds of appeal.\"\n3.\nRecord of Hearing\n3.1 That the hearing in the matter took place before this\nTribunal on 05.08.2025 when the Ld. AR for and on behalf of the\nassessee appeared before us and interalia contended that there is\na delay of 3 years in preferring the instant appeal. He pleaded\nthat there is no separate application for condonation of delay on\nrecord as the same is not filed. That an affidavit dated\n07.05.2025 is filed and placed on record of the assessee basis\nwhich it is pleaded that the “Impugned Order” u/s 263 of the Act\nwhich was passed by the Ld. PCIT, Bhopal is dated 17.02.2021.\nThat the instant appeal against the “Impugned Order” is required\nby law to be filed within 60 days and hence the instant appeal\nought to have been filed by the assessee on or before\n17.04.2021 however, the same was filed on 29.04.2024 before\nthis Tribunal resulting in a delay of 3 years. In this regard it was\nsubmitted by the Ld. AR that in respect of the original\nassessment proceedings one Shri Chandrakant Agrawal who was\nas “Income Tax Preparer and a Consultant at Pipariya M.P was\nengaged by the assessee. Shri Chandrkant Agrawal had also filed\nan appeal before the Ld. CIT(A) against the consequential order\nu/s 143(3) read with section 263 on 30.03.2022 and in form\n35 his e-mail ID is reflected. It was then submitted that on\n23.01.2024 the assessee received an intimation from CPC for the\nΑ.Υ. 2023-24 wherein a refund due to him was adjusted against\nthe outstanding demand. That in February 2024 the assessee\nthen approached Shri Chanrakant Agrawal so as to understand\nfrom him the reason for such an adjustment and inquired also\nabout the status of pending appeal before Ld. CIT(A) against the\nconsequential order u/s 143(3) r.w.s. 263 of the Act. The\nassessee was informed by the said Chandrakant Agrawal that\nappeal's outcome before Ld. CIT(A) against consequential order is\nawaited. The assessee was advised to consult one Shri Muffada\nMhowwala, CA at Indore for appropriate action and for the\npurpose of proper representation. That the assessee in March\n2024 approached Shri Muffada Mhowwala, CA at Indore and\nsought an appointment to discuss the issues involved and the\nappropriate course of action to be taken in connection with the\norder passed u/s 143(3) read with section 263 of the Act. That\nupon reviewing the matter Shri Muffada Mhowwala enquired\nabout the revision order passed u/s 263 by Pr. CIT Bhopal\nand whether any appeal had been filed against the same. It\nwas pleaded by the Ld. AR that it was at this point of time that\nthe assessee became aware that an appeal lies against an\norder passed u/s 263 of the Act. It was his contention that\nfrom 17.02.2021 the date of the “Impugned Order" u/s 263 of\nthe Act till March 2024 the assessee was unaware that an appeal\nlies to this Tribunal against the “Impugned Order”. The Ld. AR\nthen contended that the assessee had not received any physical\ncopy of the “Impugned Order" nor the same was available on the\nportal. It was also pleaded that any e-mail communication\naddressed to the assessee by the Department regarding the\n"Impugned Order” might have gone or routed to the spam/junk\nfolder of his e-mail account and subsequently might have got\nauto deleted in accordance with auto deletion Policy of e-mail\nService provider. That it was submitted by the Ld. AR that the\nassessee was unaware about the appealable nature of the\n"Impugned Order” and that in the absence of any physical service\nand online visibility about the Impugned order the assessee was\nunable to file the instant appeal within the prescribed time limit.\nThe Ld. AR then stated that the assessee then submitted an\napplication to the department on 27.03.2024 requesting for a\ncopy of the Impugned Order which was later provided by the\nDepartment to the assessee. That after the receipt of Impugned\nOrder the assessee approached once again Shri Muffada\nMhowwala who advised the assessee to file the instant appeal\nand that the same was filed on 29.04.2024. It was finally\npleaded that delay be condoned and appeal of the assessee be\nadmitted. An affidavit of Shri Chandrakant Agrawal dated\n07.05.2025 was too relied upon. It was also pleaded that he\n(Chandakant Agarwal) too was not aware whether the impugned\norder u/s 263 was appealable or not. For the counsel mistake\nassessee should not suffer it was pleaded.\n3.2 Per contra Ld. DR appearing for and on behalf of the Revenue\ncontended that affidavit of assessee dated 07.05.2025 and so also\naffidavit of Shri Chandrakant Agrawal, consultant dated\n07.05.2025 cannot be relied as they are self serving affidavits.\nThere is nothing in writing except an affidavit from Shri\nChandrakant Agarwal consultant that he had not advised the\nassessee to file an appeal against the Impugned Order u/s 263 of\nthe Act. No written opinion of Chandrakant Agrawal advising the\nassessee not to file an appeal against the Impugned order u/s\n263 is placed on record. Mere affidavit of Chandrakant Agarwal\ndated 07.05.2025 ipsofacto thus cannot be relied upon in the\nabesence of any evidence of opinion in writing (supra). It was\npleaded that no affidavit of Muffadal Mhowwala, CA who had\nadvised further action to the assesee on the instant appeal\nagainst the “Impugned Order" is placed on record. It was\nsubmitted by the Ld. DR that the Revenue has a water tight case\non issue that the instant appeal is hopelessly time barred. It was\nthen contended that the “Impugned Assessment Order" is dated\n23.11.2018, the Impugned order u/s 263 is dated 17.02.2021.\nThe \"consequential Order” in pursuance to Impugned order is\ndated 28.02.2022. In this consequential order total five notice(s)\nwere issued wherein the assessee participated. Since the\nassessee was aggrieved he has even preferred first appeal before\nCIT(A) and that same is pending for hearing and final disposal at\nthe end of CIT(A) till date. The assessee very well knew about\nconsequential assessment proceedings after the impugned order\nu/s 263, the necessary compliances were made to the five\nnotice(s) in the consequential assessment proceedings and\ntherefore, the contention that assessee was not aware of\nimpugned order is highly unbelievable. It was also pleaded that\ncounsel/consultant was unaware of the fact that whether the\nimpugned order is appealable or not is really hard to digest. Non-\nreceipt of hard copy of Impugned Order u/s 263 and soft copy\ngoing into spam folder are all excuses to cover the delay. The Ld.\nDR has placed reliance on letter dated 28.04.2025 of ITO-2 Itarsi\nwere in it is stated that the Impugned order u/s 263 was issued\nby Ld. Pr. CIT-1 Bhopal on 17.02.2021 and same was received on\n26.02.2021 and that the same was served to the assessee\nthrough email dated 08.03.2021 and requisite screen short was\nenclosed. Therefore, the contention of Ld. AR is wrong that\nImpugned order was not received by the assessee. It was stated\nby the Ld. DR that normal path has been followed and assessee\ncannot turnaround.\n3.3 In rejoinder arguments the Ld. AR pleaded that on portal\nthere is nothing about passing of the Impugned Order u/s 263 of\nthe Act. On spam email he stated that it might have been\nreceived on spam/junk Mail but by virtue of spam mail policy of\nemail provider it got auto deleted within 30 days. The Assessee is\nnot a body corporate and but is an individual and case of\nassessee should be considered sympathetically.\n3.4 Ld. DR then replied that the assessee has remained totally\nnon-compliant u/s 263 proceedings too. The assessee has failed\nto show sufficient cause for the purpose of condonation of delay.\nAssessee is riding on two boats which is not permissible.\n3.5 Both sides have placed on record compilation of judgements\nin respect of their contentions with which we shall deal in our\npara 4 below.\n3.6 On merits Ld. AR submitted that written synopsis dated\n30.04.2025 be considered in event the delay is condoned.\n4.\nObservations & findings & conclusions\n4.1 We now have to decide the legality, validity and proprietary\nof the "impugned order” basis records of the case and the\ncontentions canvassed before us.\n4.2 We have carefully perused the records of the case.\n4.3 We basis records of the case and after hearing and upon\nexamining the rival contentions are of the considered view\nwhether the instant appeal before us against the impugned order\nu/s 263 of the Act in respect of which there is a delay of 3 years\nis liable to be condoned on ground of sufficient cause.\n4.4 We are of the view that delay of 3 years is abnormal and\nassessee has not shown reasonable cause.\n4.5 By virtue to section 253 of the Act an appeal against the\n"Impugned Order" u/s 263 of the Act lies before this Tribunal.\n[section 253(1)(c)]. By virtue of section 253(3) of the Act every\nappeal under subsection (1) shall be filed within sixty days of\nthe date on which the order sought to be appealed against is\ncommunicated to the assessee. Further by virtue of section\n253(5) the appellate Tribunal may admit an appeal after the\nexpiry of 60 days if it is satisfied that there was sufficient cause\nfor not presenting it within that period. Therefore, the real\ntest is whether the assessee in the instant appeal has shown\n"sufficient cause or not". We basis records of the case hold that\nthe assessee has not shown any “sufficient cause" for the\ncondonation of delay by us basis his affidavit(s) and his\nsubmissions.\n4.6 The assessee has contended basis affidavit dated 07.05.2025\nof Shri Chandrakant Agrawal a Tax consultant of Pipariya Dist:\nNarmadapuram, M.P. that he had not advised the assessee that\nan appeal could be filed against the “Impugned order” u/s 263 of\nthe Act. Whereas in personal hearing it was contended by the Ld.\nAR that the Tax consultant Shri Chandrakant Agrawal, was not\naware whether the "Impugned order" u/s 263 of the Act is\nappealable or not. In the affidavit Shri Chandrakant Agrawal has\nnot stated that he was not aware whether impugned order u/s\n263 is appealable order or not. On the contrary he has deposed\nthat he had advised assessee not to file an appeal against\n"Impugned order” u/s 263 of the Act. We thus notice sharp\ncontradiction between what is pleaded by Ld. AR in the hearing\nand what the affidavit of Shri Chandrakant Agrawal in fact\nstates. Therefore, we reject the contention of Ld. AR about\nmistake on part of tax consultant Shri Chandrakant Agrawal as\nthere is inherent contradiction. The fact that in the affidavit of\nShri Chandrakant Agrawal dated 07.05.2025 wherein he has\ndeposed that \" That prior to this, I had not advised Shri\nSaquib Ahmed that a separate appeal could be filed against\nthe order passed under section 263 by the Principal\nCommissioner of Income Tax\", clearly goes to show that both\nthe assessee as well as Tax consultant Shri Chandrakant Agrawal\nknew one undisputed fact for sure that an appeal lies against the\n"Impugned Order" u/s 263 of Ld. PCIT Bhopal. We, therefore,\nreject the contention of Ld. AR that there was a “Counsel\nMistake" and hence delay should be condoned. We hold that it\nwas to the full and complete knowledge of the assessee as well as\nhis Tax consultant that an appeal was required to be filed against\nthe impugned order u/s 263 of the Act which was an appealable\norder but the assessee choose not to file the same at that point of\ntime. The fault is of the assessee and it is wrong on part of the\nassessee to state that it was mistake of his counsel. We hold that\nplea of mistake of counsel is a cover to seek condonation of delay\nan approach wholly untenable in law. The laches are clearly\nattributable to the assesee in choosing not to file an appeal\nagainst the “Impugned Order” at proper time and place. The\nplea of whether the “Impugned order” is appealable or not is an\nincorrect one and wrong.\n4.7 Insofar as non-receipt of impugned order u/s 263 of the Act\nis concerned the Ld. DR has successfully demonstrated before us\nas and by way of a letter dated 28.04.2025 of Ld. AO that the\n"Impugned Order” was served upon the assessee through e-mail\non 08.03.2021 and screen shot is proof in support of same.\nThe plea of Ld. AR that since assessee was unaware of impugned\norder passed u/s 263 and later made an application to obtain the\nsame on 27.03.2024 is nothing but an after thought exercise to\njustify the delay when it is successfully demonstrated by Ld. DR\nthat the "Impugned order” was served upon the assessee as early\nas on 08.03.2021 by the Ld. AO. The plea of e-mail going into\ntrash and junk are false and taken up with a view to justify the\ndelay in filing the appeal an approach wholly untenable in law.\nThe assessee has gone in to his plea for the delay condonation far\nbeyond to even state that as per policy of e-mail service\nprovider the e-mail of Ld. AO dated 08.03.2021 must have gone\nto trash/junk and must have got automatically deleted as per\npolicy of e-mail service provider which mandates deletion of e-\nmail in trash/junk if it is beyond 30 days in such box of\ntrash/junk. We deprecate such plea of the assessee.\n4.8 We hold that plea of assessee that on advise of Tax\nconsultant, Shri Chandrakant Agrawal he went to another CA\ncalled Shri Muffadal Mhowwala who advised him to file the\ninstant appeal when he narrated his story to him is too wrong\nand false as no affidavit of Shri Muffadal Mhowwala, CA is\nplaced on record stating that he had advised the assessee to file\nthe instant appeal when he was sent to him by Shri Chandrakant\nAgrawal, the Tax consultant to explore the opportunity of proper\nrepresentation before CIT(A) as appeal against the consequential\norder was pending for hearing and final disposal at that stage.\nWe therefore, hold that “alibi” is created by the assessee which\nhas no foundational grounds in support of delay condonation.\n4.9 We hold that from the record it is clear that consequent upon\nthe impugned order u/s 263 of the Act the assessee participated\nin fresh assessment proceedings held before Ld. AO and\neventually against the consequential assessment order he filed,\nan appeal which is now pending before the CIT(A) and therefore,\nthe assessee is incorrect in stating that he became aware of\nimpugned order passed u/s 263 only when he received the same\nafter he had made an application to department on 27.03.2024.\nThe fact that assesee participated in the consequential\nassessment proceeding itself shows that he was aware of the\n"Impugned Order" u/s 263 of the Act which was the foundation\nfor the consequential assessment proceedings which he at\nmaterial time choose to continue with it instead of challenging\nthe "Impugned order" u/s 263. It is only at a later point of time\nhe choose to challenge the same(supra) by which time period of 3\nyears had elapsed. Hence, we hold that Ld. DR has rightly\ncontended that assessee is riding on two boats or horses and\nwants to take a chance by filing the instant appeal though\nbelatedly an approach wholly untenable in law. We\nsimultaneously hold that while there is no legal bar and the\nAssessee can proceed with both i.e. with the consequential\nassessment proceedings including an appeal before Ld. CIT(A)\nand so also by filing an appeal before ITAT challenging the\nlegality and validity of the Impugned order u/s 263 of the Act\nwhich he has done so but there is in reality an abnormal delay\nof 3 years against statutory time limit of 60 days for preferring\nsuch an appeal. We, therefore, hold that time begins to run from\n08.03.2021 and assessee ought to have filed an appeal before\nthis Tribunal on or before 08.05.2021 which unfortunately has\nnot happened and instant appeal was filed on 29.04.2024 with a\ndelay of 3 years. The assessee thus has failed to show “sufficient\ncause” within the meaning of section 253(5) of the Act.\nAccordingly we refuse to admit the instant appeal.\n4.10 With regard to precedent cited by both the parties our\nanalysis is as under:-\n1. The Ld. AR has placed reliance on the order of ITAT,\nJaipur in case of Natthi Singh vs. ITO in ITAT\nNo.117/JP/2023 dated 03.05.2023 wherein the impugned\norder of CIT(A) was directly received in to a spam folder of\nAR of the assessee and there was a delay of 233 days.\nAffidavit of Ld. AR was placed on record wherein it was\ndeposed that impugned order of CIT(A) was received in spam\nfolder. In the instant case the affidavit of Ld. AR and so\nalso of assessee is silent with regard to the contention\nthat e-mail under which impugned order u/s 263 was\nsent definitely went into spam/junk folder. The Ld. AR\nas well as assessee are silent on this aspect. It is stated by\nassessee that it might have gone into spam/junk folder.\nHence assessee himself is in doubt about his assertion on\nspam/junk mail. Hence on facts, case is distinguishable.\nIn order of ITAT Pune Bench dated 06.01.2025 in case of\nSarika vs. ITO ward 14(5) Pune ITANo.1776/Pun/2024 an\nemail had gone to spam folder which contained assessment\norder. It was a case of delay before Ld. CIT(A). In the instant\ncase neither the assessee nor his tax consultant in their\nrespective affidavits have categorically stated that impugned\norder u/s 263 went to spam/junk folder. It is the\nassumption of the assessee that it might have gone into\nspam/junk folder and as per policy of e-mail service\nprovided it got automatically deleted within 30 days. The\nfacts are therefore distinguishable.\n2. The Ld. AR has placed reliance on the judgment of M.P.\nHigh Court in case of Shri Neel Kumar Ajmera vs. Pr. CIT\nIndore-1 dated 01.04.2025 in ITA No.01 of 2025 where the\ndivision Bench has held that delay was due to appellant\nresiding at a place for 15 years and brother of the appellant\nwas dragged into civil and criminal litigation. In view of this\nappellant and his family members were also harassed by\nvarious creditors and Government department. The\nappellant moved to Mumbai with family members. The\nappellant during 2018 to 2024 could not coordinate with tax\nconsultant. Order of CIT(A) was not received by the\nappellant and it came to his knowledge in 2024 and\nthereafter appeal was filed before ITAT. The delay was 1797\ndays. The Hon'ble High Court therefore held that appellant\nhas put forth sufficient cause for delay in filing appeal\nbefore ITAT. In the instant case the Revenue has\nsuccessfully demonstrated before us that Impugned order\nu/s 263 of the Act was served to assessee on\n08.03.2021and hence facts of the case are distinguishable.\n3. The Ld. AR has placed reliance on the judgment of\nHon'ble Bombay High Court in case of Vijay Wishin Meghani\nvs. Dy. Commissioner of Income Tax reported in (2017) 86\ntaxmann.com 98 (Bombay) wherein the assessee has filed\nan appeal before Tribunal with delay of 2984 days by taking\na plea that he was wrongly advised by his CA earlier not to\nfile appeal. The assessee produced affidavit of CA in support\nof his plea. The said affidavit was not contested by the\nRevenue. Delay was condoned. In the instant case Revenue\nhas successfully demonstrated that Impugned order u/s\n263 was served to the assessee on 08.03.2021 and appeal\nwas filed on 29.04.2024. Hence facts are distinguishable.\nIn the instant case the assessee is contending on one\nhand that Impugned order was received on or before\n29.04.2024 whereas the tax consultant much prior there to\nhad not advised him to file an appeal against the Impugned\norder. Therefore, assessee's arguments are not consistent.\nIn brief in the instant appeal on issue of delay the assessee\nhas taken following stand:-\n(i) Impugned order hard copy was received on or after\nMarch, 2024 upon application by him.\n(ii) Impugned order was not received by e-mail from Ld.\nAO on 08.03.2021 as it might have gone into\ntrash/junk inbox.\n(iii) That tax consultant Shri Chandrakant Agrawal\nprior to assessee meeting with Muffadal Mhowwala had\nnot advised the assessee that a separate appeal could\nbe filed against the Impugned order u/s 263 of the Act.\nIn view of Ld. DR establishing before us that Ld. AO\nhad served the Impugned order on the assesee's e-mail on\n08.03.2021 together with copy of screen short are all proof\nenough that Impugned Order was indeed served to the\nassessee on 08.03.2021 which fact during hearing have not\nbeen rebutted at all by Ld. AR and the assessee.\nIn the instant appeal revenue has contested all the\ncontentions of the assessee including affidavit and have\nestablished service of Impugned order on 08.03.2021 by\nproducing screen short. Hence facts of Hon'ble Bombay\nHigh Court decision are distinguishable.\n4. Per contra the Ld. DR for Revenue has placed reliance\non following decisions:-\n(i) Antelio Business Techologies (P) Ltd V/s ACIT reported in\n2024 (767) taxmann.com.385 (Hyderabad Tribunal) and has\ncanvassed that in this case PCIT invoking Section 263 set\naside the assessment order with certain directions and\nassessee initially had chosen to proceed with revision\nproceedings before Assessing Officer and subsequently\nduring pending of proceedings before Assessing Officer it\nfiled appeal challenging order under section 263 before\nTribunal with a delay of 384 days, since assessee adopted\nwait and see method to have best of both worlds, delay in\nfiling appeal did not deserve to be condoned\nWe agree with the contention of the Ld. DR that the\nassessee in the instant case too is adopting “wait and see\nmethod" to have best of both the worlds, delay in filing\nappeal therefore does not deserve to be condoned. Facts of\nabove case are more or less parimateria with the facts of\ninstant case.\n(ii) The Ld. DR then has placed reliance on decision in\ncase of CSK Realtors Ltd, Hyderabad v/s ITO Ward-1(2),\nHyderabad in ITA No.233/Hyd/2023 (Hyderabad Tribunal)\nwherein the assessee challenged the 263 order after a delay\nof 328 days, claiming lack of proper legal advice initially and\na belief that the AO would decide the matter independently.\nThe Tribunal noted that the assessee is a commercial entity\nwith access to legal expertise, and its conduct reflected an\nattempt to "fest the waters" in the consequential assessment\nbefore raising juri ictional issues. Relying on the SRK\nInfracon ruling, the Tribunal refused to condone the delay\nand dismissed the appeal on grounds of limitation, again\nwithout examining the merits.\nIn the instant case assessee by filing instant appeal\nwhile his appeal before CIT(A) against the consequential\nassessment order is pending before CIT(A) is also trying to\ntake a chance and to test waters.\n(iii)The Ld. DR then placed reliance on decision in case of\nSRK Infraction (India) Pvt Ltd, Hyderabad v/s ITO ward 3(3),\nHyderabad in ITA No.8/Hyd/2022 (Hyderabad Tribunal)\nwherein the assessee filed an appeal with a delay of 988\ndays against the revisional order under Section 263. While\nthe assessee cited non-receipt of the PCIT's order email,\nreduced staff due to cessation of business, and the COVID\npandemic, the Tribunal found these reasons not bona fide.\nIn para 10, the Tribunal emphasized that while merit\nshould generally override technicalities, there is no mandate\nto condone delay in every case. Courts must examine\nwhether the delay was due to reasons beyond the assessee's\ncontrol, and in this case, it concluded the reasons were\nvague and unconvincing, suggesting afterthought\nIn para 13, the Bench specifically noted that the\nassessee had ample opportunity, as 10 months elapsed\nbetween the PCIT's revisional order and the AO's\nconsequential order, and yet the assessee took no action.\nEven the appeal before CIT(A) was filed over two years later.\nThis lack of vigilance was held fatal to the assessee's case.\nThe Tribunal refused to condone the delay, holding\nthat commercial entities are expected to act diligently, and\nlitigation cannot be prolonged indefinitely under the pretext\nof inadequate internal communication. The appeal was\ndismissed as time-barred, without examining merits.\nIn the instant case assessee has not demonstrated\nany reasons for delay which were beyond his control. The\nreasons for delay herein are too vague and unconvincing\nsuggesting after thought.\n(iv) The Ld. DR placed reliance on judgment of Apex Court\nin case of UOI v/s Jehangir Byramji Jeejeebhoy reported in\n2024 SCC on line SC 427 and has contended that the length\nof delay is a relevant matter which the court must take\ninto consideration while considering whether the delay\nshould be condoned or not from the tenor of the approach\nof the appellants, it appears that they want to fix their own\nperiod of limitation for instituting the proceedings for\nwhich law has prescribed a period of limitation. Once it is\nheld that a party has lost his right to have the matter\nconsidered on merits because of his own inaction for a\nlong, it cannot be presumed to be non-deliberate delay and\nin such circumstances of the case, he cannot be heard to\nplead that the substantial justice deserves to be preferred\nas against the technical considerations. While considering\nthe plea for condonation of delay, the court must not start\nwith the merits of the main matter. The court owes a duty\nto first ascertain the bona fides of the explanation offered\nby the party seeking condonation, It is only if the sufficient\ncause assigned by the litigant and the opposition of the\nother side is equally balanced that the court may bring into\naid the merits of the matter for the purpose of condoning,\nthe delay question of limitation is not merely a technical\nconsideration. The rules of limitation are based on the\nprinciples of sound public policy and principles of equity.\nWe should not keep the 'Sword of Damocles hanging over\nthe head of the respondent for indefinite period of time to be\ndetermined at the whims and fancies of the appellants.\n(v).The Ld. DR has placed reliance on the judgment of Apex\nCourt in case of Lanka Venkateshwarlu D v/s State of AP\nreported in (2011)(4) SCC 363 and has contended that the\nconcepts such as "liberal approach", "justice oriented\napproach", "substantial justice" can not be employed to\njettison the substantial law of limitation, Especially in cases\nwhere the Court concludes that there is no justification for\nthe delay Whilst considering applications for condonation of\ndelay under Section 5 of the I imitation Act, the Courts do\nnot enjoy unlimited and unbridled discretionary powers, All\ndiscretionary powers, especially judicial powers, have to be\nexercised within reasonable bounds, known to the law.\n(vi) The Ld. DR has placed reliance on judgment of Apex\nCourt in case of Pathapati Subba Reddy v/s Special Dy\nCollector reported in 2024 SCC on line SC 513 that liberal\napproach cannot override statutory limitation.\n(vii) The Ld. DR has placed reliance on the judgment of\nApex Court in case of Lata Mata Din V/s A Narayanan\nreported in AIR 1996 SC 1623 that the law is settled that\nmistake of counsel may in certain circumstances be taken\ninto account in condoning delay although there is no\ngeneral proposition that mistake of counsel by itself is\nalways a sufficient ground. It is always a question whether\nthe mistake was bona fide or was merely device to cover an\nulterior purpose such as laches on the part of the litigant or\nan attempt to save limitation in an underhand way.\nThe Ld. DR basis this Apex Court judgment contended\nthat Chandrakant Agrawal Tax Consultant affidavit clearly\nstated he had not advised the assessee to file an appeal\nagainst the impugned order which mean at that point of\ntime both assessee as well as tax consultant had full and\ncomplete knowledge about the impugned order u/s 263 of\nthe Act. In this context we hold that we are in agreement\nwith the contention of Ld. AR that blame game culture\nresorted to by the assessee has no legs to stand.\nSubsequent event described in both affidavits (supra) by\nvirtue of which another CA Shri Mhowwala was brought to\nscene is an aliby with no basis as CA Shri Mhowwala\naffidavit is not placed on record. The so called aliby has\nloose chains and an unbelievable story.\n(viii)The Ld. DR has also placed reliance on the judgment of\nMP High Court in case of State of M.P & Another v/s Hemraj\nS/o Kanhaiyalal (deceased) through Legal heirs Aesarbai &\nothers reported in 2025 MPHC-IND 6064 wherein it was\nobserved that “length of delay is no matter, acceptability of\nthe explanation is the only criterion, it was further held that\nthe primary function of a court is to adjudicate the dispute\nbetween the parties and to advance substantial justice.\nRules of limitation are not meant to destroy the rights of\nparties and they are meant to see that parties do not resort\nto dilatory tactics, but seek their remedy promptly. Hon'ble\nApex Court also cautioned that if the delay is occasioned by\nparty deliberately to gain time then the Court should lean\nagainst acceptance of the explanation. The explanation\nshould not be fanciful and concocted. The Courts while\ndealing with an application to condone delay should keep in\nmind the right accrued to other side and should deal with\nsuch application with utmost care and caution.\nBasis this judgment it was contended that right of\nrevenue accrued to them should too be considered on delay\naspect. We therefore hold that rule of time limit\ncontemplated u/s 263of filing an appeal to this Tribunal\nwithin 60 days is a must however legislature by the Act has\nalso given a leeway to person affected that appeal can be\nfiled beyond 60 days provided sufficient cause is shown and\nthis Tribunal may choose to admit the appeal if it is\nsatisfied that sufficient cause is indeed shown but it is not\nshown in the instant appeal as besides delay of 3 years the\nbonafide of assessee is not genuine and aliby is made which\nhas no foundation an approach wholly untenable in law.\nThere is no averment on part of assessee and so also by his\ntax consultant that due care and caution was exercised in\nnormal course since the commencement of original\nassessment proceeding and their conduct was diligent etc.\nIn the absence of any positive averment in affidavits (supra)\nwe hold that assessee was negligent in preferring the instant\nappeal within due time and hence we do not condone\ndelay of 3 years.\n4.11However, before taking any decision further on instant\nappeal we deem it fit and necessary to examine what assessee\nhas to say on merits.\n4.12 On merits we find that the impugned order u/s 263 of the\nAct requires no intervention by this Tribunal as the assessee has\nfailed to assist the Ld. PCIT in any manner whatsoever at the\nmaterial time and place. In the synopsis dated 30.04.2025 which\nLd. AR wants us to take into consideration it is not stated\nanywhere that show cause notice dated 15.01.2021 issued by Ld.\nPCIT to the assessee in U/s 263 proceedings were replied by the\nassessee. In the absence of any assistance by the assessee\ndespite opportunities, the Ld. PCIT made impugned order u/s\n263 of the Act basis record and correctly held the impugned\nassessment order to be erroneous and prejudicial to the interest\nof revenue. To challenge such an impugned order u/s 263 of the\nAct without offering any assistance to the Ld. PCIT u/s 263\nproceedings and to contend for the first time before this\nTribunal that the said impugned order u/s 263 of the Act is\nwrong and illegal is an incorrect approach and speaks volumes\nabout conduct of the assessee. Under these circumstances we do\nnot have any ground or material to set aside the impugned order\nas nothing by way of submissions by the assessee was before Ld.\nPCIT. We find that save and except filling a written synopsis\ndated 30.04.2025 the Ld. AR has not been successfully able to\nestablish that the “impugned order” is incorrect and wrong. It is\nnot demonstrated that it is not proper and illegal.\n5.\nOrder\n5.1 In the premises set-out herein above, we do not admit the\nappeal as same is time barred. Accordingly appeal of assessee is\nrejected both on issue of time barred as well as on merits.\n5.2 In result the appeal of the assessee is dismissed.\nOrder pronounced in open court on 18.08.2025.\n \n \n(BHAGIRATH MAL BIYANI)\nACCOUNTANT MEMBER\n(PARESH M JOSHI)\nJUDICIAL MEMBER\nIndore\nदिनांक / Dated : 18/08/2025\nPatel/Sr. PS\nCopies to: (1) The appellant\n(2) The respondent\n(3) CIT\n(4) CIT(A)\n(5) Departmental Representative\n(6) Guard File\nBy order\nSenior Private Secretary\nIncome Tax Appellate Tribunal\nIndore Bench, Indore",
"summary": {
"facts": "The assessee filed an appeal against the order passed by the Pr. CIT under section 263 of the Income Tax Act, 1961. The appeal was filed with a significant delay of 3 years beyond the prescribed time limit.",
"held": "The Tribunal held that the assessee failed to provide sufficient cause for the delay in filing the appeal. The arguments presented regarding the non-receipt of the order and reliance on tax consultants were found to be untenable and lacking in bona fide. Therefore, the appeal was not admitted.",
"result": "Dismissed",
"sections": [
"253",
"263",
"143(3)",
"143(2)",
"142(1)"
],
"issues": "Whether the delay in filing the appeal against the order under section 263 of the Income Tax Act, 1961, is condonable on the grounds of sufficient cause, and if the impugned order is legally sustainable."
}
}