ITAT noted that the Commissioner of Income Tax (Appeals) had dismissed the appeal as un-admitted for the reason that there was a delay of 649 days by both the Assessees and that the Assessees could not submit any reason except that his Auditor was pre-occupied with his professional commitments and hence the appeal before the Commissioner of Income Tax (Appeals) could not be filed within 30 days.
Assessee could not file any evidences as to how the Assessee’s Counsel was preoccupied in his professional commitments for 649 days. In the absence of any evidences, we confirm the order of the Commissioner of Income Tax (Appeals) and both the appeals of the Assessees are dismissed.
FULL TEXT OF THE ORDER OF ITAT CHENNAI
These two appeals by different Assessees are arising out of two different orders of the Commissioner of Income Tax (Appeals)-14, Chennai in Appeal Nos.101 & 102/CIT(A)-14/2017-18; and both dated 22.01.2019. The Assessments were framed by the Assistant Commissioner of Income Tax, Non-Corporate Circle – 13(1), Chennai for the Assessment Year 2012 – 2013, u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (hereinafter “the Act”), vide orders of even date 31.03.2016.
2. At the outset, it is noticed that this appeal, I.T.A. No.717/Chny/2019 filed by the Assessee was fixed for hearing for the first time on 03.06.2019 and on various occasions this appeal was fixed for hearing and on some days, the Bench did not function. But this appeal came up for hearing before the Bench on 03.06.2019, 08.01.2020, 23.12.2020, 08.04.2021, 22.06.2021, 01.09.2021, 25.10.2021, 13.12.2021, 23.02.2022, 11.08.2022 and finally on 14.09.2022. The Assessee was represented only on 03.06.2019, 23.12.2020, 08.04.2021, 01.09.2021, 25.08.2021 but on other dates there was total non-representation. The Assessee was represented but only asked for adjournments, which mean that the Assessee did not want to represent the case and hence we are hearing this appeal as ex-parte qua and decide this appeal on merits.
3. We have heard the learned Senior Departmental Representative and had gone though the facts of the case. We noted that the Commissioner of Income Tax (Appeals) had dismissed the appeal as un-admitted for the reason that there was a delay of 649 days by both the Assessees and that the Assessees could not submit any reason except that his Auditor was pre-occupied with his professional commitments and hence the appeal before the Commissioner of Income Tax (Appeals) could not be filed within 30 days. The Commissioner of Income Tax (Appeals) has recorded common findings in both the orders and the findings recorded in I.T.A. No.717/Chny/2019 in the case of Shri Balaraman Gokula Krishnan reads as under:
“4. Condonation of Delay:
4.1. The Assessee has stated that the Assessment order was received on 02.04.2016. The due date for filing of the appeal was 01.05.2016; whereas it was filed on 09.02.2018. There has been a delay of 649 days. The Appellant requested to condone the delay vide Column No.15 of Form No.35, stating that as his Auditor was preoccupied with his professional commitments, the appeal was not filed within the period of 30 days.
5. I have carefully considered the submissions of the Appellant. In my view, reasonable cause was not established for condonation of delay. The condonation is not a matter of right and there must be a reasonable cause for condoning any delay. This was held so by the Hon’ble Supreme Court in the case of Ramlal & Others Vs. Rewa Coal Fields Limited, AIR 1962 [SC] 361. Similar observations were also made by the Hon’ble Madras High Court in the case of Madhu Dadha Vs. ACIT, 317 ITR 458. There is no thumb rule that the delay in all cases is to be condoned. Acceptability of the explanation is the only criteria.
6. The Hon’ble Chennai ITAT in the case of JCIT Vs. Tractors and Farm Equipments Limited, 105 TTJ 705 underlines the importance of making distinction between inordinate delay and delay of a few days and accordingly dismissed the Assessee’s appeal by holding that the cause of substantial justice would not be served by condoning the inordinate delay of 310 days; whereas it condoned the small delay of 20 days in filing the appeal by the Revenue. In that case, 310 days of delay was not condoned by the majority decision of three members.
7. Similarly, the ITAT, Hyderabad in the case of M/s. Anjani Foods Limited (formerly Raasi Enterprises Limited) vide ITAT No.1530/HYD/2014; dated 07.04.2016 held that the above decision of the Chennai Tribunal in the case of JCIT Vs. Tractors and Farm Equipments Limited, is a third member decision which has the force of Special Bench decision and they are bound by the principles laid down in that case.
8. The Hon’ble Punjab and Haryana High Court in the case of Commissioner of Income Tax Vs. Ram Mohan Kabra, 257 ITR 773, held that where the Legislature spells out a period of limitation and provides for power to condone the delay and such delay can only be condoned only for sufficient and good reasons supported by cogent and proper evidence. The Calcutta Tribunal, in the case of the Assistant Commissioner of Income Tax Vs. Taggas Industries Development Limited, 80 ITD 21, has not condoned the delay for filing the appeal late by 13 days because the delay was not due to sufficient casue.
7. In this case, the delay is for 649 days. The only reason given is Auditor’s professional commitment, which led to not filing the appeal within 30 days. This explanation of the Assessee perhaps would be accepted for a short delay but not acceptable for explaining such a long delay. The explanation given by the Assessee does not convince me in condoning 649 days of delay.
8. In view of the above facts and law, I am of the view that the reason given by the Assessee is not a sufficient cause to condone the delay of 649 days and accordingly the delay in filing the appeal is not condoned. Since the appeal is dismissed in limine, no opinion is expressed on the merits of the case.
9. In the result, the appeal is dismissed.”
4. Even before us, the Assessee could not file any evidences as to how the Assessee’s Counsel was preoccupied in his professional commitments for 649 days. In the absence of any evidences, we confirm the order of the Commissioner of Income Tax (Appeals) and both the appeals of the Assessees are dismissed.
5. In the result, the appeals of the Assessees in I.T.A. Nos.717 & 718/Chny/2019 are dismissed.
Order pronounced in the court on 14th September, 2022 at Chennai.