M/S. LUPMEX VINCOM PVT. LTD.,HOWRAH V. I.T.O., WARD - 12(1), KOLKATA, KOLKATA

ITA 1202/KOL/2024

AI Insights

This case involves an appeal by M/s Lupmex Vincom Pvt. Ltd. against an order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi. The appeal was dismissed by the Income Tax Appellate Tribunal, Kolkata, primarily due to the appellant's failure to attend hearings or respond to defect notices, leading to an uncondonable delay in filing the appeal. The tribunal emphasized the importance of adhering to procedural timelines and the necessity for appellants to provide justifiable reasons for any delays in filing appeals.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 705691 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Assessment Year: 2021-2022
• Other Referred Cases: Collector, Land Acquisition v. Mu. Kat, State of Gujarat Sayed Mohd Baquir El Edross, Ramlal Motilal v. Rewa Coalfields, Ajit Singh Thakur Singh v. State of Gujarat
• Laws Referred To: Income Tax Act, 1961, Limitation Act, 1963
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay; Reasonable cause; Onus to prove; Period of limitation; Competent authority; Time period of passing order

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, KOLKATA SHRI GEORGE MATHAN, JUDICILA MEMBER SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No. 1202/Kol/2024 (Assessment Year 2021-2022) M/s Lupmex Vincom Pvt. Ltd., 2nd Floor, 28, Bhairab Dutta Lane, Howrah, Salkia, Pin- 711106 [PAN: AAACL8729J] ……..…...…………….... Appellant vs. ITO, Ward 12(1), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata - 700069 ................................ Respondent Appearances by: Assessee represented by : None Department represented by : Abhijit Adhikary, Addl.CIT Date of concluding the hearing : 25.06.2025 Date of pronouncing the order : 30.06.2025 O R D E R PER SANJAY AWASTHI, ACCOUNTANT MEMBER 1. This appeal arises from order u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”), passed by Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, vide order dated 27.03.2024. 1.1. In this case, it is seen that effective hearings started on 28.08.2024, on which date an AR attended for seeking adjournment. Thereafter, on 25.04.2024, 03.02.2025, 01.04.2025 and finally on the last date of hearing (25.06.2025), none have attended on behalf of the assessee or sought any adjournment. Accordingly, it is decided to proceed ahead with the adjudication. 2. It is seen that the ITAT Registry has reported a delay of 01 day, for which, as per record, a defect notice was sent dated 29.05.2024. This notice 2 ITA No. 1202/Kol/2024 M/s Lupmex Vincom Pvt. Ltd. inter alia contained details of defects, including the non-filing of a petition for condoning the delay. It is seen that this defect notice was also not responded to. In result, the delay is not to be condoned. 3. At this stage, we need to discuss the duty of an assessee for filing a petition for condoning any delay. Howsoever short, as in this case, through an affidavit. The Hon'ble Apex Court in catena of decisions has held that the law of limitation being substantive, the power of discretion to condone the delay is to be exercised judiciously and cannot be exercised in a routine manner. The parties are expected to approach the Court in adherence to this general principle. Thus, filing an appeal is the rule and condoning the delay is the exception, wherein the Courts have to exercise their discretionary power judiciously and by recording reasons. Excessive delay, as in this case, cannot be simply missed away by casually mentioning that the Principal Officer was hard pressed for time. Such casually explained delay is to be construed as an uncondonable delay. Once there is a delay, the person who is filing the condonation petition is expected to furnish the reason which must be acceptable to this Bench. 3.1. Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mu. Kat 1987 taxmann.com 1072/28 ELT 185, has observed that it is for the assesses to explain each and every day of delay in filing of appeal. Before us in the present case, no such petition/prayer/application for condonation of delay is filed much less a sufficient and satisfactory explanation to prove that there is a reasonable cause for the said delay. In this case, it is evident that the appellant has conveniently decided not to justify the delay in filing by informing this Bench on the detailed reasons, for which the appeal could not be filed in time. 4.0. At this juncture, it is necessary to delve into the genesis of limitation and how a judicial forum needs to deal with matters pertaining to condonation of delay. 3 ITA No. 1202/Kol/2024 M/s Lupmex Vincom Pvt. Ltd. 4.1. Almost all the tax laws, whether they relate to direct taxes or Indirect taxes, contain provisions for condonation of delay in filing appeals, if the appellant (whether it is the taxpayer or the revenue proves to the satisfaction of the appellate authority that be had sufficient cause for not filing the appeal within time. The genesis for such provisions can be traced to section 5 of the Limitation Act, 1963, which reads as follows: \"Extension of prescribed period in certain cases. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he has sufficient cause for not preferring the appeal or making the application within such period. Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning o this section\" 4.2. The two essential ingredients for condoning delays are: (1) the existence of 'sufficient cause', and (ii) the satisfaction of the competent authority that such sufficient cause was proved as existing. Thus, the first issue about the existence of sufficient came covers the factual matrix in respect of which the onus to prove is squarely on the litigant, while the second issue about 'satisfaction' covers the discretionary area in which the competent authority, this Bench, is expected to act. It is by now well settled that the expression 'sufficient cause' has to be understood to mean a cause beyond the control of the appellant or one which the appellant, even with the exercise of due care and attention, could not avoid. The expression is required to be interpreted liberally so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. Further, it is a general principle of law that whenever a Court is vested with a discretionary power, such a discretion must be exercised not in an arbitrary, vague or fanciful manner but on judicial principles. The fundamental principle, which has been universally recognised as the true rule of guidance for the exercise of discretion to condone delays is to see whether the party claiming indulgence has been reasonably diligent in prosecuting his appeal in the case of State of Gujarat Sayed Mohd Baquir El Edross AIR 1981 SC 1921, the Supreme Court laid down the following 4 ITA No. 1202/Kol/2024 M/s Lupmex Vincom Pvt. Ltd. principles that should govern the exercise of powers of condonation under section 5: (a) The party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal, etc within the prescribed time. (b) The explanation has to cover the entire period of delay. (c) A litigant should not be permitted to take away a right which has accrued to his adversary by lapse of time. (d) The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested under section. (e) The discretion conferred on the Court is a judicial discretion and must be exercised to advance substantial Justice. (f) No liberal view should be taken merely because the defaulting party is a Government. (g) Even if there was a strong case for acceptance of the appeal on merits that could not be a ground for condonation of delay. (h) When there is remiss on the part of the advocate, the question is whether the mistake was bona fide or was merely a device to cover the ulterior purpose such as latches on the part of the litigant or an attempt to save limitation in an underhand way. 4.3. It was also held in an earlier decision in the case of Ramlal Motilal v. Rewa Coalfields AIR 1962 SC 361, that every day's delay must be explained Another important requirement is that the cause' for the delay must have arisen before the expiry of the limitation period, and, as held by the Supreme Court in the case of Ajit Singh Thakur Singh v. State of Gujarat AIR 1981 SC 733, \"no event or circumstance arising after the expiry of limitation period can constitute sufficient cause\". 5 ITA No. 1202/Kol/2024 M/s Lupmex Vincom Pvt. Ltd. 5. Considering the detailed discussion above, it is our considered opinion that the appellant has not been able to demonstrate any reasonable cause to allow condonation of delay, even a short one, in the matter. Accordingly, this appeal is dismissed on the point of limitation, without any decision on the merits of the case. 6. In result, appeal of the assessee is dismissed. Order pronounced on 30.06.2025 Sd/- Sd/- (George Mathan) (Sanjay Awasthi) Judicial Member Accountant Member Dated: 30.06.2025 AK, Sr. P.S. Copy of the order forwarded to: 1. M/s Lupmex Vincom Pvt. Ltd., 2. ITO, Ward 12(1), Kolkata 3. Pr. CIT 4. CIT(A) 5. CIT(DR) //True copy// By order Assistant Registrar, Kolkata Benches "