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Facts
The assessee filed an appeal against the order passed by the CIT(A) for AY 2011-12. The original assessment order was passed by the AO under section 143(3) r.w.s. 147, which was later challenged before the CIT(A). The CIT(A) dismissed the appeal, upholding the AO's order and noting the assessee's non-compliance.
Held
The Tribunal held that the reasons provided by the assessee for the delay in filing the appeal were general and lacked corroborative evidence, thus not constituting a "sufficient cause" for condonation. Furthermore, the Tribunal noted the appellant's non-appearance on multiple hearing dates, indicating a lack of interest in prosecuting the appeal.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the appeal should be dismissed for non-prosecution.
Sections Cited
148, 143(3), 271(1)(c), 253(5), 250
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Before: SHRI PAWAN SINGH & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R
PER BIJAYANANDA PRUSETH, AM:
This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) dated 16.10.2023 by the CIT(Appeals)/National Faceless Appeal Centre, Delhi [in short ‘the CIT(A)’] for the assessment year (AY) 2011-12, which in turn arises out of assessment order passed by Assessing Officer (in short ‘AO’) u/s 143(3) r.w.s. 147 of the Act dated 17.12.2018. Grounds of appeal
raised by the assessee are as under:
1. The Ld. AO has erred in law and facts in reopening the assessment u/s 148 of the Income Tax Act 1961. Hence all the proceedings are illegal and additions made due to the assessment is liable to be deleted.
/AY.11-12 M/s Ruby Gems Pvt.Pvt 2. The Ld. AO has erred in law and on facts in making addition of Rs.1,46,00,000/- in respect of on account of bogus purchase transaction. In view of the facts and merits of the case, the addition made by Ld. AO is liable to be deleted. 3.The Ld. AO has erred in law and on facts in levying penalty u/s 271(1)(c) of the Act. 4. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.”
The appeal was filed on 24.05.2024. There was defect in the appeal memo., which was rectified by the Ld. AR of the assessee vide letter dated 05.06.2024. The brief facts of the case are that assessee e-filed its return of income for A.Y 2011-12 declaring income of Rs.78,740/-. The case was reopened and notice u/s 148 was issued on 28.03.2018, in response to which assessee filed return on 08.0.2018 declaring the same total income of Rs.78,740/-. The reasons for reopening was given to assessee and its objection was disposed of by AO on 11.09.2018. Thereafter, various statutory notices and show cause notice were issued to the assessee and transaction of Rs.1,46,00,000/- with M/s Dhawar Enterprise was treated as bogus and added to the total income of assessee. Aggrieved, assessee filed appeal before CIT(A) who issued three notices which were not complied with by the assessee. Therefore, the CIT(A) observed that assessee was not interested in prosecuting the appeal. He has relied on the decisions in cases of State of Late Tukoji Rao Holkar vs. CWT 223 ITR 480 (MP), New Diwan Oil Mills vs. CIT (2008) 296 ITR 495 (P & H) and CIT vs. B. N.Bhattacharjee & Another 118 ITR 461 pages 477- /AY.11-12 M/s Ruby Gems Pvt.Pvt 477) (SC) and observed that preferring an appeal means effectively pursuing it. The CIT(A) has thereafter dismissed the grounds of appeal raised by assessee before him by holding that the AO has validly reopened the case by following due procedure. He has also dismissed the appeal on merit by stating that no new evidence was produced by the appellant during appellate proceeding so as to deviate from the findings of AO.
3. Aggrieved by the order of CIT(A) assessee has filed present appeal before Tribunal, which is late by 74 days. The assessee has admitted at column No.11 of Form-36 that there is delay of filing of appeal. Shri Prafulchandra Ishverlal Patel, Director of assessee-company has filed an affidavit by stating that the order of CIT(A) was passed on 16.10.023 and it was served the next day through on-line portal. However, due to some events which took place in the meantime, he could not present the case in due time before Tribunal. It was also stated that Shri Patel was not aware regarding the time limit for filing appeal before Tribunal. He stated that his health was not good and he was under depression due to family disturbance. His old tax consultant was also out of Surat, which caused further delay.
4. The case was fixed for hearing on 10.12.2024, 19.02.2024 and 13.03.2025. None appeared on behalf of the appellant. On the other hand, Ld.Sr-DR for the Revenue submitted that the reasons given by the appellant is general in nature and hence, the delay should not be condoned.
/AY.11-12 M/s Ruby Gems Pvt.Pvt 5. We have considered the affidavit of the appellant and submission of Ld.Sr-DR. We find that the reasons given by the appellant is general in nature without any corroborative evidence. There is no “sufficient cause” within the meaning of sub-section (5) of Section 253 of the Act for not filing the appeal within 60 days of the date on which the order of CIT(A) was communicated to the assessee. The Hon’ble Supreme Court in the case of H.Guruswamy & Ors. Vs. A. Krishnaiah Since Deceased by Lrs. in Civil Appeal No.317 of 2025 dated 08.01.2025 observed that concept such as “liberal approach”, “justice oriented approach”, “substantial justice” should not be employed to frustrate or jettison the substantial law of limitation. The reasons that the appellant was engaged in some events after receipt of the appellate order, that his health was not well and that he was under the depression are not supported by any corroborative evidence. In fact, none attended on the dates of hearing before us to adduce any evidence in support of the general remarks for the delay stated by the appellant in the affidavit. Therefore, the delay is not condoned and the appeal is liable to be dismissed on this ground alone.
5.1 The appeal is also liable for dismissal due to non-prosecution by the appellant. As stated earlier, hearings were posted on three occasions, i.e., 10.12.2024, 19.02.2025 and 13.03.2025. None appeared on behalf of assessee nor any application for adjournment was filed. It is, therefore, clear that appellant is not interested in prosecuting the appeal. The Hon’ble Bombay High Court in case of M/s Chemipol vs. Union of India and Commission of /AY.11-12 M/s Ruby Gems Pvt.Pvt Central Excise, Thane in case of Central Excise Appeal No.62 of 2009 dated 17.09.2009, after referring to the decisions of Hon’ble Supreme Court in case of Sunderlal Mannalal vs. Nandramdas Dwarkadas AIR 1958 MP 260, Dr. P. Nalla Thampy Thera vs. B.L. Shankar 1984 (Supp) SCC, 631 and New India Assurance Co. Ltd. vs. R. Srinivasan (2000) 3 SCC 242 held that every court and tribunal has an inherent power to dismiss a proceeding for non-prosecution when the petitioner/appellant before it does not wish to prosecute the proceeding. In the present appeal, the appellant has been non-compliant before the CIT(A) as well as the Tribunal. It has also filed the appeal beyond the statutory time limit available under the Act. In view of the clear statutory provisions and the precedents cited supra, appeal of the assessee is dismissed.
In the result, appeal of the assessee is dismissed. Order is pronounced on 13/03/2025 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ ACCOUNTANT MEMBER सूरत /Surat �दनांक/ Date: 13/03/2025 Dkp Outsourcing Sr.P.S*