SHRI ABDUL HAQUE,COONOOR vs. ITO, COIMBATORE

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) I, Coimbatore, dated 03.12.2010 relevant to the assessment year 2007-08.

When the appeal was taken up for hearing, it was found that the appeal filed by the assessee is time barred by 294 days.

Initially, the appeal was posted for hearing on 28.03.2012. Since there was no representation from the assessee, the appeal filed by the assessee was dismissed vide order of the Tribunal dated 28.03.2012. The said order of the Tribunal was recalled by the order of the Bench in M.P. No. 220/Mds/2012 dated 18.12.2012.

Thereafter, the appeal was posted for hearing on 15.01.2013 and when the appeal was taken up for hearing, none appeared on behalf of the assessee and at the request of the assessee, the hearing of the appeal was adjourned to 11.03.2013. On 11.03.2013, when the appeal was taken up for hearing, none appeared on behalf of the assessee and the Bench has observed that the appeal is time barred by 294 days, the condonation petition filed by the assessee was defective and directed to issue notice to the assessee to rectify the defect.

Thereafter, the case was posted for hearing on 09.10.2013 and at the request of the ld. AR, the hearing was adjourned to 31.12.2013. Since Bench did not function on 31.12.2013, the hearing was adjourned to 18.03.2014 and on that day none appeared on behalf of the assessee when the appeal was taken up. Since the assessee filed adjournment petition, the hearing was adjourned to 05.06.2014.

When the appeal was taken up for hearing on 05.06.2014, none appeared on behalf of the assessee and since more than sufficient opportunities were given to the assessee from 15.01.2013, the adjournment petition filed by the assessee was rejected. The Bench has observed that till the date of its order dated 05.06.2014, the defect petition for condonation was not rectified by filing fresh one, it was inferred that the assessee is not interested in pursuing his appeal and accordingly, the appeal filed by the assessee was dismissed.

Against the order of the Tribunal dated 05.06.2014, the assessee filed M.P. No. 128/Mds/2014 and at the request of the assessee, the said ex- parte order of the Tribunal was recalled by chamber order dated 10.09.2014 and restored to its original number.

The appeal was posted for hearing on 21.01.2015 and when the appeal was taken up for hearing, none appeared on behalf of the assessee and the hearing of the appeal was adjourned to 04.02.2015.

When the appeal was taken up for hearing on 04.02.2015, there was no representation from the assessee and therefore, vide order dated 04.02.2015, the appeal filed by the assessee was dismissed on the ground that the there was neither any representation from the assessee nor the defect petition for condonation was rectified by filing fresh affidavit for condonation of delay of 294 days in filing the appeal.

The assessee filed another M.P. No. 30/Mds/2015. The hearing of the miscellaneous petition filed by the assessee was posted and adjourned to 10.04.2015, 15.05.2015, 26.06.2015, 24.07.2015, 21.08.2015, 11.09.2015, 06.11.2015, 13.11.2015 since there was no representation. Finally, when the M.P. was posted on 11.12.2015, the AR of the assessee appeared and after considering the request, the ex-parte order of the Tribunal dated 04.02.2015 was recalled by order dated 11.12.2015 and restored to its original number and posted for hearing of the appeal on 11.02.2016.

At the request of the ld. AR of the assessee, the hearing of the appeal was adjourned to 29.03.2016. Again at the request of the ld. AR of the assessee, the hearing was adjourned to 30.03.2016.

Despite the hearing of the appeal was dragged from 28.03.2012 to 30.03.2016, the assessee has not filed fresh affidavit to rectify the defect pointed out by the Bench on 11.03.2013 and also communicated vide order dated 05.06.2014 and 04.02.2015. Therefore, it is quit evidence from the approach of the assessee that the assessee is not interested to prosecute his appeal before the Tribunal. Accordingly, the appeal filed by the assessee is dismissed.

On merits, on perusal of the petition filed for condonation of delay in filing the appeal before the Tribunal, the assessee has not mentioned the actual days of delay in filing the appeal. Moreover, there was no sufficient reasonable cause for delay in filing the appeal.

The decision of the Hon’ble Jurisdictional High Court in the case of Madhu Dadha v. ACIT [2009] 317 ITR 458, “wherein the Hon’ble High Court dismissed the appeal filed by the assessee and confirmed the order of this Tribunal since the assessee had not taken proper plea to show sufficient cause for condoning the delay in filing the appeal”. In the present case, the negligent attitude of the assessee cannot be taken care to preserve the right of appeal since the assessee has not shown sufficient cause in the defect petition for condonation to condone the delay of more than 11 months, exactly 294 days in filing the appeal. Therefore, the defect petition for condonation of delay is liable to be dismissed and not admitted for hearing of the appeal for further adjudication. Accordingly, the appeal filed by the assessee is dismissed as not maintainable.

In the result, the appeal filed by the assessee is dismissed. Order pronounced on the 29th April, 2016 at Chennai.