KUSUM YADAV,INDORE vs. PCIT (1), INDORE

Per: Udayan Das Gupta, JM

This appeal has been filed by the assessee against the order of the ld. PCIT-1,

Indore, passed u/s 263 of the Act, 1961, dated 06.03.2019 for A.Y. 2014-15.

“1 That the learned CIT(A) erred in invoking provisions u/s 263 of the Income Tax Act inspite of the fact that the issue was considered by the AO. Issuance of the notice u/s 263 being

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illegal and wrong, the order so passed u/s 263 require to be quashed. 2 That the learned CIT(A) erred in passing an order u/s 263 on the pretext of inadequate enquiry. The order so passed u/s 263 being illegal and wrong, the same require to be quashed. 3 That the learned CIT(A) erred in passing order u/s 263 without making any independent enquiry. It is a settled law that if the CIT(A) wants to make any adverse inference, he has to make an independent enquiry to reach to a definite conclusion. The order so passed without making any independent enquiry is illegal and wrong, the same require to be quashed.” 3. It is pointed out by the registry that this appeal is filed belatedly by 1877 (one thousand eight hundred and seventy-seven) days. The assessee has filed an application praying for condonation of delay supported by an affidavit explaining , that the order of the Ld. PCIT was passed u/s 263 of the Act 61 on 6th March, 2019 , against which appeal if any should have been preferred before the Tribunal within sixty days , that is by 5th May, 2019 , but in the instant case the appeal has been filed before the tribunal on 24th June, 2024 , which is belated by more than five years , due to the reason that the counsel of the assessee was not aware of the legal procedure that an appeal lies before the tribunal u/s 253(1)( c), against an order passed by the ld. PCIT u/s 263 of the Act 61.

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3.1 The contents of the affidavit are reproduced as under for ready reference:

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and for admission of the belated appeal to be heard and decided on merits. 5. The Ld. DR objected to the said application for condonation and submitted that the assessee has all along been represented by qualified chartered accountants Mr. M. Chandaliya (FCA) before the AO in course of original assessment proceedings and subsequently before the Ld. PCIT in course of 263 proceedings (as emerging from records submitted as part of paper book).

5.1 Thereafter, in course of set aside proceedings u/s 143(3) / 263 of the Act, the Ld. counsel, mentioned above, represented the case and filed submissions on 10th November, 2019 before the AO. Subsequently, appeal has been filed before the Ld CIT(A) in form 35 on 28th 5.2 December, 2019, against the order passed u/s 143(3) / 263 of the Act , dated 13th December, 2019 , through his authorised CA Mr. Shailendra Solanki under email

id ( as recorded in form 35 ) shailendrasolanki132@gmail.com . Subsequently, against the order passed u/s 250(6) of the Act dated 30th November, 2023, the second appeal before the tribunal against such order has been filed in form 36 by

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the assessee , through his Ld. AR , under same email id shailendrasolanki132@gmail.com , on 12th December, 2023, and the Ld. AR of the assessee Mr Solanki , is before the tribunal today representing the matter. 5.3 The Ld. DR, further submitted that the cause for delay in appeal filing, stated by the assessee in her affidavit, does not match with the facts on record. He further submitted that as per records initially it was Mr. M. Chandaliya (FCA), who appeared on behalf of the assessee before the Ld. PCIT, up till 263 proceedings, thereafter Mr Solanki (FCA) was handling the matter effective from December 2019, onwards, resulting in filing of appeal before first appellate authority on 28th December, 2019, and as such he was very much aware from that date onwards that an order u/s 263 is existing on record. He further submitted that even for sake of argument, even it is accepted that the first counsel was not aware of the legal formalities, (as stated by the assessee in her sworn affidavit), the present counsel has been involved in the matter since December 2019, and there is no reason as to why this appeal before the tribunal against the order passed u/s 263, could not have been filed forth with in the month of December, 2019 itself. He further submitted that, even if the reasons put forth by the assessee (in her affidavit) is accepted as true, it will, at best cover the delay commencing from 5th May, 2019,

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(sixty days from date of 263 order) till December, 2019 but thereafter, there is absolutely no reasons whatsoever which can explain the delay till June, 2024. 6. We have considered the facts emerging from the records and the submission of the rival counsels and we find that two appeals are pending before the tribunal in respect of the assessee for the same assessment year, (considering same issues relating to capital gains and unexplained cash deposits in bank accounts). (i) one against order passed by the first appellate authority u/s 250(6) of the Act 61 dated 30th November, 2023 (filed on 12th December, 2023) being ITA No 518/Indore/ 2023, (which has been heard and shall be disposed off vide a separate order). AND (ii) the another one against the order of the Ld PCIT passed u/s 263 of the Act, dated 6th March, 2019, (filed belatedly on 24th June, 2024) being ITA No 511 / Indore / 2024.

6.1 We observe that in the instant appeal before us that is ITA No: 511/ Indore / 2024, against order u/s 263 of the Act, assessee has not taken any steps to file the appeal within stipulated time against the order dated 6th March 2019, passed u/s 263 of the Act 61, and has waited for the outcome of the proceedings u/s 143(3) / 263 to be completed, which was completed, vide order dated 13th December, 2019 ,

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and thereafter, the assessee has proceeded to file appeal before the first appellate authority on 28th December, 2019, and all along the way, the assessee has been guided and supported by qualified chartered accountants in all respects. 6.2 Here also, the assessee has waited for the outcome of the appellate order u/s 250(6) of the Act, which was dismissed by the Ld. CIT(A) vide order dated 30th November, 2023, and the assessee proceeded to file second appeal before the tribunal against the said order on 12th December, 2023. 6.3 On seeing the negative outcome of the appeal before the Ld. CIT (A), the assessee (by way of a precaution) thought it prudent to file a belated appeal on 24th June, 2024, against the order u/s 263 of the Act 61, dated 6th March, 2019, which was delayed by more than five years and has filed an affidavit showing insufficient cause, expecting the delay to be condoned. 6.4 We find that in this case the inordinate delay has arisen due to negligence and for want of due diligence on the part of the assessee and this delay is intentional and deliberate and the cause for delay as explained by the assessee in her affidavit, regarding lack of legal knowledge of her councils is a farfetched theory devoid of merits. 6.5 Before we conclude we would like to refer to the observation of the Hon’ble Apex court in the case of PATHAPATI SUBBA REDDY (DIED) BY L.Rs. & ORS.

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VERSUS THE SPECIAL DEPUTY COLLECTOR CIVIL APPELLATE

JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO. 31248 OF 2018, order dated 8th April, 2024, where the Hon’ble court has laid down some important

points to be kept in mind regarding the law of limitation and condonation of delay.

6.6 The Court was deciding a Special Leave Petition (SLP) preferred by the

legal representatives of a man in a land acquisition case. The Two-Judge Bench of

Justice Bela M. Trivedi and Justice Pankaj Mithal mentioned the following

principles:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

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(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal; (vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, instant amounts to disregarding the statutory provision.

6.7 Respectfully, following the law laid down by the Hon’ble Apex court we

hold that in the instant case the assessee has not exercised his right to remedy for a

long time without sufficient cause and the inordinate delay of more than five years,

has arisen out of negligence and want of due diligence and the reasons or cause

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stated in the affidavit are not only insufficient but are also factually incorrect

considering the materials on record.

6.8 As such in the instant case, we refuse to condone the delay of eighteen

hundred seventy-seven days in filing this appeal and the appeal is dismissed.

Since we have not admitted the appeal to be heard on merits, we do not adjudicate

on the grounds contained in the memorandum of appeal.

dismissed.

Order pronounced on 24.04.2025 under Rule 34(4) of the Income Tax

Appellate Tribunal Rules 1963.

Sd/- Sd/- (BAGIRATH MAL BIYANI) (UDAYAN DAS GUPTA) Accountant Member Judicial Member AKV

Copy of the order forwarded to:

(1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order

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Date Initia l 1. Draft dictated on 02.04.25 Sr.PS/ PS 2. Draft placed before author 02.04.25 Sr.PS/ PS 3. Draft proposed & placed JM/A before the Second Member M 4. Draft discussed/approved by JM/A Second Member M 5. Approved Draft comes to Sr.PS/ the Sr. P.S./P.S. PS 6. Kept for pronouncement on Sr.PS/ PS 7. File sent to the Bench Clerk Sr.PS/ PS 8. Date on which file goes to the Head Clerk 9. Date on which file goes to the AR 10. Date of dispatch of Order