ABUSAAD AHMAD,LUCKNOW V. ASTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1, LUCKNOW

MA 16/LKW/2024

AI Insights

The case involves Abusaad Ahmad, the applicant, who filed Miscellaneous Applications seeking to recall an order of the Income Tax Appellate Tribunal that dismissed his appeals due to a significant delay in filing. The Tribunal's original decision was based on the finding that the reasons for the delay, attributed to the negligence of the assessee's driver, were not corroborated by independent evidence and thus insufficient to warrant condonation of the delay. The assessee argued that the Tribunal should have verified the affidavit of the driver through a summons or commission under section 131 of the Income Tax Act, referencing a Supreme Court decision which supported the need for cross-examination or documentary evidence to challenge an affidavit's correctness. However, the Tribunal found that the applications did not demonstrate any mistake apparent on record and thus dismissed the Miscellaneous Applications.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 785771 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 27-12-2024
• Other Referred Cases: Mehta Parikh and Co. v. Commissioner of Income-tax, Bombay [1956] 30 ITR 181
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAJESH SRIVASTAVA
• Keywords: Condonation of delay; Rectification of order
• Section: 131

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “A”, LUCKNOW BEFORE SHRI. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER M.A. Nos.16 & 17/LKW/2024 [Arising out of ITA Nos.365 & 366/LKW/2018] Assessment Years: 2005-06 & 2008-09 Abusaad Ahmad 4/202, Vishal Khand Gomtinagar Lucknow v. The ACIT Central Circle – 1 Lucknow TAN/PAN:ABBPA5779N (Applicaant) (Respondent) Applicant by: Shri Suyash Agarwal, Advocate Respondent by: Shri Prajesh Srivastava, D.R. O R D E R PER SUDHANSHU SRIVASTAVA, J.M.: These Miscellaneous Applications have been preferred by the assessee for recalling the order of the Tribunal dated 03.07.2024 passed in ITA Nos.365 & 366/LKW/2024. 02. The brief facts are that the appeals of the assessee in ITA Nos.365 & 366/LKW/2024 were dismissed by the Tribunal vide order dated 03.07.2024 on the grounds of limitation. 03. Now, the assessee has preferred these Miscellaneous Applications, stating therein as under: “That the present Misc. application u/s 254(2) of the act is preferred with the view to seek rectification of mistakes apparent from the record. Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 2 of 7 The order dated 03.07.2024 passed by the Hon'ble bench needs rectification on the following grounds:- A. The affidavit of driver in support of the delay condonation application was rejected by the Honble Bench on the averment of DR. that reasons given are flimsy and unconvincing. To verify the contents of the affidavit of the driver, the summon or commission ought to have been issued u/s 131 before disbelieving the contents of the affidavit. the Hon'ble Supreme Court of India in Mehta Parikh and Co. v. Commissioner of Income-tax, Bombay [1956] 30 ITR 181. In that case, their Lordships of the Supreme Court, in very similar circumstances, held that the rejection of an affidavit filed by an assessee was not justified unless the assessee had either been cross-examined or called upon to produce documentary evidence in support of the affidavit sworn by him. Their Lordships held: \"No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party. The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Income-tax Officer, who was present at the hearing of the appeal before the Appellate Assistant Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 3 of 7 Commissioner, considered it necessary to call for them in order to cross-examine them with reference to the statements made by them in their affidavits. Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits.\" B. As per section 255(6) of the act the Hon'ble ITAT while discharging its functions have all the power which are vested with Income Tax Authorities u/s 131. C. In para 3 of the order, the Hon'ble Bench has mentioned that the appeal has witnessed 34 hearings. It is pertinent to submit here that the appellant had appointed Mr Sandeep Gupta Adv for attending hearing; Sri Sandeep Gupta advocate once appeared on 01.06.2022, thereafter Mr Sandeep Gupta never updated the appellant about his appearance on various dates fixed in the appeal. Accordingly, on account of non- appearance / mistake of the counsel the assesse may not be penalized. Moreover, as apparent of the portal, the on several occasion the date was adjourned due to non-availability of Hon'ble Bench and on some occasion the counsel did not appeared on the date fixed. Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 4 of 7 D. The reason for non-appearance on 03.07.2024 which lead to passing the exparte order by the Hon'ble Bench was the same Mr. Sandeep Gupta Advocate did not attend the hearing. That in view of facts stated above, the it is most humbly prayed that the Hon'ble bench may please to recall the order dated 03.07.2024 passed in ITA NO. 365/LKW/2018 AY 2005-06 and hear the appeal afresh, in the interest of justice.” 04. The Ld. Authorized Representative for the assessee (Ld. A.R.) reiterated the contents of the Miscellaneous Applications and submitted that the assessee’s appeals had been dismissed by the Tribunal on the ground that the assessee could not satisfactorily explain the delay of 867 days each in filing the appeals before the Tribunal. It was submitted that the applications explaining the delay and the Affidavits, supporting the applications for condonation of delay, had been filed with original set of papers filed before the Tribunal. It was submitted that the order of the Tribunal may kindly be recalled for the purpose of adjudication the appeals on merits so that greater interest of justice is met. Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 5 of 7 05. Per contra, the Ld. D.R. supported the order of the Tribunal and submitted that the appeals had rightly been dismissed by the Tribunal. 06. We have heard both the parties and have also perused the material on record. A perusal of the common order dated 03.07.2024 in ITA Nos.365&366/LKW/2018 shows that admittedly both the appeals were filed after a delay of 867 days each from the expiry of statutory period prescribed under section 253(3) of the Income Tax Act, 1961. In the order, the Bench had proceeded to examine whether there was sufficiency of reasons behind the delay in filing the said appeals. A further perusal of the above said order of the Tribunal would show that it was the averment of the assessee in the applications for condonation of delay that copies of the Ld. First Appellate Authority’s orders were received immediately by the Driver of the assessee who had kept them in the garage and it was only during the course of assessment of the subsequent assessment year that it came to the knowledge of the assessee that the appeals against the impugned orders were yet to be filed. Thus, as per the assessee, the delay was attributable to the gross negligence on the part of the Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 6 of 7 Driver. Thereafter, the Bench observed in the above said order that the averments in the delay condonation applications were not corroborated by any independent evidence and that the Bench also did not find the stated reason to be sufficient for explaining the delay in filing the appeals. In nutshell, the explanations in the applications were not found to be plausible and, thus, the Bench reached a conclusion that the assessee had failed to demonstrate that there was any sufficient cause or sufficient reason behind the inordinate delay of 867 days each in filing the captioned appeals. Thus, having gone through the above said order, we are of the considered view that the appeals of the assessee were dismissed after giving a thoughtful consideration to the applications for condonation of delay and the appeals were dismissed after having arrived at a considered opinion that the delay condonation petitions could not satisfactorily explain the delay. Accordingly, we find that there is no mistake apparent on record in the order dated 03.07.2024 passed in the two appeals, namely ITA Nos.365&366/LKW/2024 and we dismiss both the Miscellaneous Applications. Printed from counselvise.com M.A. Nos.16 & 17/LKW/2024 Page 7 of 7 07. In the final result, both the Miscellaneous Applications filed by the assessee stand dismissed. Order pronounced in the open Court on 30/10/2025. Sd/- Sd/- [ANADEE NATH MISSHRA] [SUDHANSHU SRIVASTAVA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:30/10/2025 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR By order Assistant Registrar/DDO Printed from counselvise.com "