DINESH KUMAR SINGH,RAIGARH V. INCOME TAX OFFICE, RAIGARH, RAIGARH

MA 16/RPR/2025

AI Insights

The case involves Dinesh Kumar Singh, the appellant, who filed a miscellaneous application arising from an earlier appeal (ITA No.426/RPR/2024) concerning the assessment year 2012-13. The original appeal was dismissed by the Tribunal due to a delay of 178 days in filing, which the Tribunal found unexplained and uncondoned. The appellant contended that the delay was not applicable as he only became aware of the CIT(Appeals) order upon receiving a penalty notice, and thus did not file for condonation. The Tribunal, however, found that the appellant had not participated in the proceedings nor provided a satisfactory explanation for the delay, leading to the dismissal of the appeal. The miscellaneous application sought to challenge this dismissal, but the Tribunal held that it was beyond the scope of Section 254(2) to review its earlier decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 668830 (ITAT-RAIPUR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-06-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Other Referred Cases: T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), Commissioner of Income Tax (IT-4) Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: SUNIL KUMAR AGRAWAL
• Keywords: Condonation of delay; Principle of natural justice
• Section: 6

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी पाथ[ सारथी चौधरȣ, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. No.16/RPR/2025 (Arising out of ITA No.426/RPR/2024) Ǔनधा[रण वष[/Assessment Year : 2012-13 Dinesh Kumar Singh Sonumuda, Kali Mandir, Ward No.42, Raigarh (C.G.)-496 001 PAN: CQMPS5008L .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer Ward-1, Raigarh (C.G.) ……Ĥ×यथȸ / Respondent Assessee by : Shri Sunil Kumar Agrawal, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 06.06.2025 घोषणा कȧ तारȣख / Date of Pronouncement : 26.06.2025 2 MA No.16/RPR/2025 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM The captioned Miscellaneous Application has been filed by the assessee arising out of ITA No.426/RPR/2024 for assessment years 2012- 13 u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 2. The Ld. Counsel for the assessee by filing the captioned miscellaneous application submitted as follows: (relevant extract) “1.1. The Hon'ble Bench has passed order u/s.254(1) dt.8-1- 25 in the case of the assessee for AY12- 13 which is an ex- parte assessment order passed u/s.147 r.w.s.144 dt.24-11- 18 by ITO, Ward-3, Raigarh; thereafter, the Id. CIT(A)/NFAC has passed an ex-parte order u/s.250 dt.31-1-24 by dismissing the appeal of the assessee; this order u/s.250 dt.31-1-24 came to known to the assessee only on 27-8-24 when the penalty notice u/s.271(1)(c) for the AY12-13 received by speed post on 27-8-24; thereafter, the assessee filed appeal against the order passed u/s.250 dt.31-1-24 before the Hon'ble Bench in Form No.36 on 26-9-24, which is, as per the assessee, was within the prescribed time; while, the Hon'ble Bench has considered it delay by 178 days by computing from the date of order u/s.250 dt.31-1-24 which is the first mistake in the impugned order of the Hon'ble Bench; 1.2. thereafter, it has decided on the premise that the assessee has not filed any application for condonation of delay; when the assessee is of the contention that there was no delay as he only came to known about the appellate order on 27-8-24 when he received penalty notice by speed post, and, therefore, not filing any application for condoning the delay is a bona-fide of the assessee; this vital fact not been considered by the Hon'ble Bench in its true spirit and this is the second mistake in the impugned order; 3 MA No.16/RPR/2025 1.3. However, in response to the defective notice dt.30-9-24 issued wherein there is no mention of delay of 178 days, there is only mention for \"Col.No.11 is wrongly filed\"; date of communication of order wrongly mentioned in the Form, hence, time barred cannot be calculated\"; thereafter, the assessee filed an affidavit explaining the facts as above mentioned reasons; but, this also not been considered by the Hon'ble Bench, and this is the third mistake in the impugned order; 1.4. This is an ex-parte assessment order made u/s.147 rws.144 & also an ex-parte appellate order by CIT(A)/NFAC, Delhi; which is also not taken on account while dismissing the appeal of the assessee only on the count that the assessee has not filed any application of condonation of delay, which is only due to bona-fide believe of the assessee that there was no occasion of any delay in filing the impugned appeal; this also not been considered by the Hon'ble Bench, and this is the fourth mistake in the impugned order; 1.5. It is humbly prayed that it may kindly be considered in view of principle of natural justice & the impugned order may kindly be recalled interest of justice and obliged.” 3. The Ld. Sr. DR submitted that as the assessee had failed to file any condonation application explaining any cogent reason due to which the impugned delay of 178 days has been occasioned, therefore, the Tribunal had rightly dismissed the appeal on the said count itself. It was also submitted by the Ld. Sr. DR that the order of the Tribunal is well reasoned and the same does not call for any interference. 4. I have heard the submissions of the parties herein and perused the order of the Tribunal passed in ITA No.426/RPR/2024, dated 08.01.2025. It is noted that the Tribunal had dismissed the appeal of the assessee on 4 MA No.16/RPR/2025 the ground of delay of 178 days involved in appeal before it. For the sake of clarity, the observation of the Tribunal is extracted as follows: “9. I have thoughtfully considered the contentions advanced by the Ld. Authorized Representatives qua the delay of 178 days involved in filing of the appeal i.e. reckoned from the date on which the impugned order of the CIT(Appeals)/NFAC was passed i.e. 31.01.2024. I find it incomprehensible that though there is an inordinate delay of 178 days involved in filing of the present appeal but till date the assessee had neither filed any application seeking condonation of the same nor come forth with any cogent reason as to why the said delay had occasioned. The aforesaid casual and lackadaisical approach of the assessee can safely be gathered on a perusal of the record which reveals that he had neither participated in the proceedings before the A.O nor before the CIT(Appeals). As the assessee had not participated in the assessment proceedings, therefore, he was visited with an ex-parte order u/ss.147/144 of the Act, dated 24.11.2018. The assessee despite having burnt his fingers and having suffered an ex-parte assessment order, however continued with his casual approach and lackadaisical conduct wherein by not participating in the appellate proceedings before the CIT(Appeals) was visited with dismissal of his appeal in limine. The story does not end here. The assessee had failed to file the present appeal within the stipulated time period before me and the same involves a delay of 178 days. Most surprisingly, the assessee instead of coming before me with clean hands in the backdrop of the fact that a delay in filing of the appeal of 178 days was involved in filing of the present appeal a/w. an explanation as to why the same had occasioned however, wrongly states the date of service of the CIT(Appeals) order as 27.08.2024 at Sr. No.3 in Form 36. Rather, the Ld. AR on being confronted with the said anomaly instead of correcting the said mistake submitted that as the order of the CIT(Appeals) had come to his notice only on the said date, therefore, no delay was involved in filing of the present appeal. I am unable to comprehend the aforesaid conduct of the assessee who till date had not even filed a revised “Memorandum of Appeal” in Form 36 and come up with clean hands qua the correct state of affairs and an explanation for seeking condonation of delay involved in filing of the present appeal. 10. As is discernible from the “Memorandum of Appeal” in Form 35, it transpires that the assessee had provided email 5 MA No.16/RPR/2025 id i.e. [e-mail] and had specifically stated that the notices/communication be sent to him on the same. Ostensibly, as pointed out by the A.O in his “affidavit”, dated 20.12.2024, the SCN on all the three occasions i.e. on 12.12.2023, 09.01.2024 and 10.01.2024 were dropped in the email of the assessee i.e. [e-mail] and also in the email id of the assessee’s counsel [e-mail]. Also, the Ld. Sr. DR had placed on record a copy of the “Screen shot” (obtained from e-portal) evidencing that the order of the CIT(Appeals), NFAC was successfully delivered in both the aforementioned email accounts. 11. Considering the aforesaid facts in the backdrop of the lackadaisical and casual conduct of the assessee before the lower authorities, I find no reason to admit the present appeal, which in turn, involves a delay of 178 days, specifically when no application seeking condonation of delay of the same has been filed before me. Accordingly, in the backdrop of the aforesaid facts, I refrain from condoning the delay involved in filing of the present appeal and dismiss the same on the said count itself.” 5. As evident from the aforesaid, the Tribunal in its own wisdom considering all the facts, had observed that the assessee had failed to explain the reasons for the delay of 178 days. Furthermore, I am of the considered view that the primary onus to explain the reasons for delay is only on the assessee who had filed the appeal before the Tribunal. As it was the assessee’s appeal, therefore, the onus was on the assessee to explain reasons of the impugned delay which was not done and hence, the Tribunal had dismissed the appeal of the assessee. 6. Now before me, in this miscellaneous application the contention raised by the Ld. Counsel is nothing but just to seek review of the order of the Tribunal which is not permissible within the purview of Section 254(2) 6 MA No.16/RPR/2025 of the Act. As the assessee had failed to point out any mistake which is apparent, obvious, patent and glaring from record, therefore, I am of the considered view that the assessee in the garb of the aforesaid miscellaneous application is seeking a review of the order passed by the Tribunal in ITA No.426/RPR/2024, dated 08.01.2025 which is beyond the scope of the powers of the Tribunal as envisaged u/s. 254(2) of the Act. My aforesaid view is supported by the judgment of the Hon'ble Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros., (1971) 82 ITR 50 (SC), wherein the Hon'ble Apex Court had held as under: \" ....A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question.......an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record........\" Also, a similar view had been taken by the Hon'ble Supreme Court in the case of Commissioner of Income Tax (IT-4) Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC), wherein it was held as under: \"From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to 7 MA No.16/RPR/2025 relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that.” 7. Accordingly, the miscellaneous application filed by the assessee being devoid and bereft of any merit is dismissed. 8. In the result, the miscellaneous application filed by the assessee is dismissed. Order pronounced in open court on 26th day of June, 2025. Sd/- (PARTHA SARATHI CHAUDHURY) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर / Raipur; Ǒदनांक / Dated : 26th June, 2025. SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The Pr. CIT-1, Raipur (C.G.) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, “एक-सदèय” बɅच, रायपुर / DR, ITAT, “SMC” Bench, Raipur. 8 MA No.16/RPR/2025 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur "