2022 (8) TMI 1453 - HC - Income Tax

Revision u/s 264 - appellant has slept over his rights and had not been diligent in prosecuting the matter - HELD THAT - In our considered view the appellant cannot be stated to be a habitual defaulter but nevertheless did not take active steps to follow up the matter with the consultants/Advocate who was engaged to file the appeal before the tribunal. Though the appeal was presented against an order passed u/s 264 such appeal was not maintainable and the registry of the learned tribunal had entertained the appeal and it was assigned 2014 (9) TMI 1277 - ITAT KOLKATA - Therefore the explanation offered by the appellant that he was under the belief that the appeal would be heard and decided on merits appears to be reasonable as the appeal was not returned by the registry of the learned tribunal on the ground of maintainability. No instruction was given by the appellant to withdraw the appeal to the earlier consultant etc. are of self-serving statement of the appellant of which we cannot take any cognizance - Nevertheless we are convinced that the conduct of the appellant cannot be stated to be so bad to hold that he had slept over his rights. The appellant had been prosecuting the matter before a wrong forum. In any event the appellant should not be left remediless and should not be non-suited even to avail the revisional remedy more particularly when the appellant chose not to avail a statutory appeal before the first appellate authority against the assessment. Therefore the only remedy available to the appellant is to file a revision petition under section 264 of the said Act which was done by the appellant and such revisional application was made as early as on 5th March 2012. Revisional authority also has not dealt with the matter though it appears that the revisional authority had called for a report from the assessing officer on the grounds raised by the assessee. We also find from the order assed by the revisional authority the report called for from the assessing officer has been received by the revisional authority Revision ought to be heard and disposed of on merits. However noting that the matter is a long pending matter and the appellant has been pursuing his remedy before a wrong forum and the appeal before the tribunal was withdrawn and the appellant would state that he never instructed his consultant to withdraw the appeal etc. we are of the view that if the appellant requires one more opportunity to contest the revision petition on merits he should be put on terms. It is not clear as to whether any recovery proceedings have been initiated against the appellant for recovery of the said tax as computed by the assessing officer. However in order to afford an opportunity to contest the matter on merits we direct the appellant that the appellant shall deposit 15% before the assessing officer within three weeks from the date of receipt of the server copy of this judgment and order. If such deposit is effected the appellant is directed to file a petition before the Commissioner of Income Tax-II Kolkata along with the receipt requesting the revisional application to be taken up on merits. If such petition is filed the revisional authority shall take into consideration the same and decide the revision petition filed under section 264 of the said Act on 5th March 2012 on merits and in accordance with law.

Summary

Issues involved:
1. Condonation of delay in filing the appeal.
2. Challenge against the order dismissing the writ petition.
3. Examination of the conduct of the appellant regarding the appeal process.
4. Direction to deposit a certain amount before the assessing officer for further proceedings.

Detailed Analysis:
1. The first issue addressed in the judgment is the condonation of a delay of 71 days in filing the appeal. The court, after hearing the appellant's counsel and considering the reasons provided in the affidavit, condoned the delay and allowed the application (I.A. CAN 1 of 2022).

2. The second issue pertains to an intra-court appeal challenging an order dismissing a writ petition. The appellant had challenged an order passed by the Commissioner of Income Tax under section 264 of the Income Tax Act, 1961. The court noted the timeline of events and the appellant's conduct in pursuing the matter before various forums. The court found that the appellant had not been diligent in prosecuting the matter but decided that the appellant should not be left remediless. The court directed the appellant to deposit a certain amount before the assessing officer to contest the revision petition on merits.

3. The third issue involves a detailed examination of the appellant's conduct regarding the appeal process. The court observed that the appellant had not actively followed up on the appeal filed before the tribunal and had pursued the matter before a wrong forum. Despite finding the appellant lacking diligence, the court allowed the appellant an opportunity to contest the revision petition on merits by imposing certain conditions, including a deposit before the assessing officer.

4. The final issue addresses the direction given to the appellant to deposit a specific amount before the assessing officer within a stipulated time frame. The court specified that failure to comply with this condition would result in the dismissal of the appeal without further reference to the court. The judgment concluded by disposing of the appeal and connected application, with no order as to costs.

This comprehensive analysis of the judgment highlights the court's considerations regarding the delay in filing the appeal, the appellant's conduct in pursuing the matter, and the conditions imposed for further proceedings in the case.