DIPIKA AQUA FARM,OLPAD V. ADDL JCIT (A)-11, MUMBAI

ITA 948/SRT/2024

AI Insights

The case involves Dipika Aqua Farm, which is engaged in prawns harvesting and trading, appealing against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2013-14. The primary issue was the dismissal of their appeal due to a significant delay in filing. The assessee argued that they were unaware of the tax demand as no regular assessment was conducted for the year in question, and they only became aware when their refunds for subsequent years were adjusted against the demand. However, both the CIT(A) and the Tribunal found the delay unjustifiable and dismissed the appeal without adjudicating on the merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 24818 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Other Referred Cases: Ram Lal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361, Balwant Singh (Dead) Vs. Jagdish Singh, (2010) 8 SCC 685, Ornate Traders Private Limited Vs. the Income Tax Officer, Mumbai (Bombay HC), State of Uttar Pradesh & Ors vs. M/s. Satish Chand Shivhare and Brothers SLP (CIVIL) No. 5301 of 2022 dated 04th April 2022, Mani Mandir Sewa Nyas Samiti Ramghat Ayodhya v. CIT [2020] 119 taxmann.com 383 (SC), Amit Cotton Industries [2022] 136 taxmann.com 328 (SC), Tractors & Farm Equipments Ltd.[2007] 104 ITD 149 (Chennai) (TM), T. Kishan [2012] 23 taxmann.com 383 (Hyderabad)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: BHAVESH SARAIYA
• Keywords: Condonation of delay; Business income
• Section: 119; 143(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER I.T.A. No. 948/SRT/2024 (Assessment Year: 2013-14) Dipika Aqua Farm, 1, Mor Popadi Street, Olpad, Surat-394530, Gujarat Vs. ADDL/JCIT(A)-11, Mumbai [PAN No.AAIFD3855C] (Appellant) .. (Respondent) Appellant by : Shri Bhavesh Saraiya, A.R. Respondent by: Shri Mukesh Jain, Sr. DR Date of Hearing 25.03.2025 Date of Pronouncement 03.04.2025 O R D E R PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER: This appeal has been filed by the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeal), (in short “Ld. CIT(A)”), ADDL/JCIT(A)-11, Mumbai vide order dated 13.08.2024 passed for A.Y. 2013-14. 2. The assessee has raised the following grounds of appeal: “1. On the basis of facts and circumstances of the case as well as law on the subject, the CIT (Appeal)-11, Mumbai has grossly erred in upholding fact of the case by dismissing appeal on the ground of findings casual approach of the Appellant in filing appeal to CIT (Appeal) by delay of 3018 days and without giving any opportunity of being head before dismissing appeal. We humbly pray before your goodself to be generous and accept our appeal for condonation of delay and appeal matter should be taken up for hearing. 2. The CIT (Appeal)-11, Mumbai has grossly erred both in law and in upholding facts and circumstances of the case by not adjudicating the proceedings on merit and ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 2– thereby dismiss the appeal. The appellant prays that the same may kindly be heard and allowed.” 3. The brief facts of the case are that the assessee, M/s. Dipika Aqua Farm is engaged in the business of prawns harvesting and trading of prawns. The return of income filed by the assessee for the impugned assessment year was processed under Section 143(1) of the Act on 25.08.2014 in which CPC considered the net income of the assessee from business and profession of Rs. 10,55,164/- instead of net business income claimed by the assessee at Rs. 98,595/-. Hence, CPC made addition by disallowing expense of Rs. 9,56,569/-. 4. In appeal, Ld. CIT(A) observed that there an inordinate delay of 3018 days i.e. more than eight years’ delay in filing of appeal before CIT(A). Before Ld. CIT(A) the assessee submitted that the assessee was not aware about the demand as no regular assessment was done for the impugned year under consideration and the demand came to the knowledge of the assessee only when the refund of the next assessment years were adjusted against the demand for the impugned assessment year. However, Ld. CIT(A) did not condone the delay of 3018 days in filing of appeal before him and dismissed the appeal of the assessee with the following observations: “5.3.1 In the case of Ram Lal Vs. Rewa Coalfields Ltd. AIR 1962 SC 361, the Hon'ble Courts held as under: - “Even if sufficient cause has been shown, the party is not entitled to the condonation of delay in question as a matter of right. Proof of sufficient cause is a condition precedent in the exercise of the discretionary jurisdiction.” ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 3– 5.3.2 In the case of Balwant Singh (Dead). Vs. Jagdish Sing, (2010) 8 SCC 685, the Hon'ble Courts held as under: “We may state that even if the term \"sufficient cause\" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned.” 5.3.3 In the case of Ornate Traders Private Limited Vs. the Income Tax Officer, Mumbai (Bombay HC), the Hon'ble Courts held as under: - “The action which can be condoned by the court should fall within the scope of normal human conduct or normal conduct of a litigant. While Section 5 of the Limitation Act is being interpreted liberally, it cannot be so liberally that it is without any justification, since condonation of delay in a mechanical or routine manner will jeopardize the legislative intent behind section 5.” 5.4 Following the discussion of above, and considering the opinion expressed by Hon’ble Courts I rule that there is no sufficient cause and evidence given by the appellant to file the appeal delayed by 3018 days. The submission for condonation of delay is therefore rejected. 5.5 Since condonation of delay is not granted, there is no need to adjudication on merits of the case. In this regard, reliance is placed in the case of State of Uttar Pradesh & Ors vs. M/s. Satish Chand Shivhare and Brothers SLP (CIVIL) No. 5301 of 2022 dated 04th April 2022 wherein the Hon’ble Court held as under:- “If delay is not condoned, no adjudication on merits is warranted”.” 5. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(A) in dismissing the appeal of the assessee. 6. On going through the facts of the instant case, the limited issue for consideration before us is whether the assessee has been able to make out a genuine case for not filing the appeal before Ld. CIT(A) within the prescribed time limit. On going through the case of the instant case, we observe that there was a delay of more than eight years’ delay in filing of appeal before Ld. CIT(A). Before Ld. CIT(A) the only reason given as to why appeal could not be filed before Ld. CIT(A) within prescribed time was that the assessee was not checking the emails regularly and hence was ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 4– not aware about the demand since all intimations were being sent on his email. On going through the facts of the instant case, we are of the considered view that there has been gross negligence on part of the assessee in not filing appeal before Ld. CIT(A) and the assessee has given no cogent reason as to why there was such an inordinate delay in filing of appeal. In our view, the assessee has not given any reason as to why the assessee was not checking the status of his email, especially in light of the fact that the assessee had in regularly file returns of income for the subsequent assessment years as well. Therefore, we observe that on one hand the assessee has been regularly filing returns of income for the subsequent assessment years through online portal but neither the assessee nor it’s consultant have checked the status of assessment for the impugned assessment year for a period of over eight years. 7. In the case of Ram Lal vs. Rewa Coalfields Ltd. AIR 1962 SC 361, the Hon’ble Courts head as under:- “Even if sufficient cause has been shown, the party is not entitled to the condonation of delay in question as a matter of right. Proof of sufficient cause is a condition precedent in the exercise of the discretionary jurisdiction.” 8. Further, in the case of Balwant Singh (Dead) vs. Jagdish Singh (2010) 8 SCC 685, the Hon’ble Courts head as under:- “We may state that even if the term \"sufficient cause\" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned.” 9. In the case of Mani Mandir Sewa Nyas Samiti Ramghat Ayodhya v. CIT [2020] 119 taxmann.com 383 (SC), the Hon'ble Supreme Court ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 5– held that where assessee sought for condonation of delay of four and half years in filing appeal against order of Tribunal on ground of ailment of manager but High Court declined to condone delay on ground that there was nothing on record to show that manager was suffering from ailments which did not permit him to take initiative for filing of appeal, SLP against said decision was to be dismissed. In the case of Amit Cotton Industries [2022] 136 taxmann.com 328 (SC), the Hon'ble Supreme Court held that delay of 520 days in filing special leave petition cannot be condoned without satisfactory explanation and hence, dismissed. In the case of Tractors & Farm Equipments Ltd.[2007] 104 ITD 149 (Chennai) (TM), the ITAT held that where assessee justified delay of 310 days in filing appeal before Tribunal by stating that Commissioner (Appeals)’s order was misplaced and forgotten and when same was found while sorting out unwanted papers, steps were taken for preparation of appeal, the delay in filing of appeal before Tribunal could not be condoned as same was due to negligence and inaction on part of assessee and assessee could have very well avoided delay by exercise of due care and attention. While rejecting the assessee’s application for condonation of delay, the Tribunal made the following observations: “The delay cannot be condoned simply because the appellant’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence, whatsoever. The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, or inaction, or want of bona fides can be imputed to ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 6– the appellant, a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands. In the instant case, the assessee justified the delay only with reference to the affidavit of its director. In the said affidavit it was stated that the Commissioner (Appeal)’s order was misplaced and forgotten. It was found while sorting out the unwanted papers and thereafter steps were taken for the preparation of the appeal and consequently the delay was caused. That clearly showed that the delay was due to the negligence and inaction on the part of the assessee. The assessee could have very well avoided the delay by the exercise of due care and attention. There existed no sufficient and good reason for the delay of 310 days. Therefore, reasonings adduced by the Accountant Member were to be concurred with. [Para 8]” 7. The ITAT Hyderabad in the case of T. Kishan [2012] 23 taxmann.com 383 (Hyderabad) held that in condoning delay in filing appeal, it must be proved beyond shadow of doubt that assessee was diligent and was not guilty of negligence whatsoever. 8. On going through the facts of the instant case, we are of the considered view that the assessee has given no convincing reason whatsoever for the inordinate delay of over eight years in filing of appeal before Ld. CIT(A). In our considered view, the conduct of the assessee reflects gross negligence. Accordingly, in our considered view, we find no infirmity in the order of Ld. CIT(A) so as to call for any interference. 9. In the result, the appeal of the assessee is dismissed. Order pronounced under proviso to Rule 34 of ITAT Rules, 1963 on 03/04/2025 Sd/- Sd/- (BIJAYANANDA PRUSETH) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 03/04/2025 TANMAY, Sr. PS TRUE COPY ITA No.948/Srt/2024 Dipika Aqua Farm vs. ADDL/JCIT(A) Asst. Year –2013-14 - 7– आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant 2. ŮȑथŎ / The Respondent. 3. संबंिधत आयकर आयुƅ / Concerned CIT 4. आयकर आयुƅ(अपील) / The CIT(A)- 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, सूरत / DR, ITAT, Surat 6. गाडŊ फाईल / Guard file. आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलीय अिधकरण, सूरत/ ITAT, Surat 1. Date of dictation 02.04.2025 2. Date on which the typed draft is placed before the Dictating Member 03.04.2025 3. Other Member………………… 4. Date on which the approved draft comes to the Sr.P.S./P.S 03.04.2025 5. Date on which the fair order is placed before the Dictating Member for pronouncement .04.2025 6. Date on which the fair order comes back to the Sr.P.S./P.S .0404.2025 7. Date on which the file goes to the Bench Clerk 04.04.2025 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Dispatch of the Order…………………………………… "