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Facts
The assessee filed an appeal against the CIT(A)/NFAC's order for AY 2012-13, which was delayed by 491 days. The CIT(A)/NFAC had dismissed the appeal in limine for non-compliance, mistakenly believing the assessee opted for the Vivad Se Vishwas Scheme, and without adjudicating on merits.
Held
The Tribunal condoned the delay of 491 days, noting the reasons were circumstantial and without malafide. It held that the CIT(A) has a statutory obligation to dispose of appeals on merits and cannot summarily dismiss them for non-prosecution. The case was remanded back to the CIT(A)/NFAC for de novo adjudication on merits.
Key Issues
1. Whether the delay in filing the appeal should be condoned. 2. Whether the CIT(A) can dismiss an appeal for non-prosecution without deciding on its merits.
Sections Cited
Section 5 of the Limitation Act, 1963, Section 251(1)(a), Section 251(1)(b), Explanation to Section 251(2), Section 250, Section 250(4), Section 250(6), Section 246A
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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI PARTHA SARATHI CHAUDHURY & SHRI G. D. PADMAHSHALI
आदेश / ORDER
PER G.D.PADMAHSHALI, AM:
The present appeal preferred by the assessee emanates from the order of the Ld.CIT (Appeals)/NFAC, Delhi dated 26.08.2022 for the assessment year 2012-13 as per the grounds of appeal on record.
At the time of hearing none appeared for the assessee. The matter is heard after recording the submissions of the Ld. Sr. DR and on careful perusal of the material available on record.
At the time of hearing, it is noted that the appeal is time barred by 491 days. Elaborating the reasons leading to the said delay, the assessee has filed condonation petition a/w. affidavit dated 28.05.2025. For the sake of completeness, the contents of the affidavit is extracted as follows:
3 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur On a perusal of the condonation applications a/w. affidavits in respect of the captioned appeal, we are of the considered view that the reasons for delay involved in the captioned appeal is purely circumstantial and there is no malafide or deliberate conduct on the part of the assessee. Further, the revenue has failed to bring on record any evidence which suggest that there was any lackadaisical approach on the part of the assessee. That at the same time in the issue of delay a liberal and judicious approach must be adopted also as has been held by the Hon’ble Apex Court in a recent judgement. The Hon’ble Supreme Court in the case of Vidya Shankar Jaiswal Vs. ITO, Ward-2, Ambikapur, Civil Appeal Nos……………../2025
4 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur [Special Leave Petition (Civil) Nos. 26310-26311/2024, dated 31.01.2025, had observed that a justice oriented and liberal approach ought to be adopted while considering the aspect of condoning the delay involved in filing of the appeal. Also, the Hon’ble High Court of Chhattisgarh in the case of Jagdish Prasad Singhania Vs. Additional Commissioner of Income Tax (TDS), Raipur (C.G.), TAX Case No.17/2025, dated 24.02.2025, after relying on the judgment of the Hon’ble Supreme Court in the case of Vidya Shankar Jaiswal Vs. ITO, Ward-2, Ambikapur (supra) had held that a justice oriented and liberal approach be adopted while considering the application filed by the assessee for condonation of delay.
That in the recent judgment of the Hon’ble Supreme Court in the 4. case of Inder Singh Vs. the State of Madhya Pradesh, Civil Appeal No…………/2025, Special Leave Petition (Civil) No.6145 of 2024, dated 21st March, 2025, the Hon’ble Apex Court while interpreting Section 5 of the Limitation Act, 1963 regarding the condonation of delay in respect of case of land acquisition has observed and held on the aspect of delay that although the delay cannot be condoned without sufficient cause, the merits of the case could not be discarded solely on the ground of delay. A liberal approach, therefore, should be taken in condoning the delay when limitation ground undermines the merits of the case and obstructs the substantial justice. In other words, the objective of the court should be to 5 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur deliver substantial justice coupled with liberal and judicious approach while deciding the issue of limitation and whenever it is found that the case has merits which needs to be addressed substantially, in such case, the delay should be condoned. Accordingly, the said delay of 491 days, involved in the captioned appeal is condoned.
At the very outset, it is noted that the Ld. CIT(Appeals)/NFAC had wrongly observed that the assessee has opted to avail the benefit of Vivad Se Vishwas Scheme, 2020 and considering the said fact, dismissed the appeal of the assessee. Further, the Ld. CIT(Appeals)/NFAC had dismissed the appeal of the assessee without going into the merits of the case.
The Ld. Sr. DR has fairly conceded that the matter may be adjudicated denovo on merits before the first appellate authority providing one final opportunity to the assessee.
We have carefully considered the contents in the documents/material available on record. As per the aforesaid examination of the entire spectrum of the matter in the interest of natural justice, we deem it fit and proper to provide one final opportunity to the assessee to represent his case on merits before the Ld. CIT(Appeals)/NFAC.
On a perusal of the order of the Ld.CIT(Appeals)/NFAC, it is observed that the Ld.CIT(Appeals)/NFAC dismissed the appeal of the 6 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur assessee in limine for non-compliance without dealing with the merits of the case. In our considered view, once an appeal is preferred before the CIT(Appeals), it becomes obligatory on his part to dispose off the same on merit and it is not open for him to summarily dismiss the appeal on account of non-prosecution of the same by the assessee. In fact, a perusal of Sec.251(1)(a) and (b), as well as the “Explanation” to Sec.251(2) of the Act reveals that the CIT(Appeals)/NFAC remains under a statutory obligation to apply his mind to all the issues which arises from the impugned order before him. As per the mandate of law the CIT(Appeals)/NFAC is not vested with any power to summarily dismiss the appeal for non-prosecution. The aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 297 CTR 614 (Bom). In the aforementioned case the Hon’ble High Court had observed as under:
"8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the AO to make further inquiry and report the result of the same to him as found in Sec. 250 of the Act. Further, Sec. 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Sec. 251(1)(a) and (h) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-s. (2) of s. 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal
7 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur under s. 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact w.e.f. 1st June, 2001 the power of the CIT(A) to set aside the order of the AO and restore it to the AO for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) are co-terminus with that of the AO i.e. he can do all that A.O could do. Therefore, just as it is not open to the AO to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the s. 251(1)(a) and (b) and Explanation to Sec. 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.”
Respectfully following the aforesaid order, we set-aside the order of the Ld. CIT(Appeals)/NFAC and remand the matter back to its file for denovo adjudication while complying with the principles of natural justice. At the same time, it is directed that this being the final opportunity, the assessee shall duly comply with the hearing notices from the Ld.CIT(Appeals)/NFAC. The Ld.CIT(Appeal)/NFAC shall accordingly pass order in terms with Section 250(4) & (6) of the Act.
As per the aforesaid terms, the grounds of appeal raised by the assessee stands allowed for statistical purposes.
8 Suresh Kumar Agrawal Vs. ACIT, Circle-2(1), Bilaspur ITA No. 370/RPR/2025
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 18th day of September, 2025.