2022 (6) TMI 1235 - AT - Income Tax

Condonation of delay of 10 years in filing the present appeal. - winding up proceedings against the assessee was initiated in the year 1998 and winding up petition was filed before the Hon ble Bombay High Court - HELD THAT - In the present case, winding up petition was filed against the company in the year 1998 and the winding up order was ultimately passed by the Hon ble High Court on 30/03/2010. Thus, even if the provisions of section 458A of the Companies Act 1956 are said to be applicable to present case, the period from filing of the winding up petition till 30/03/2010 and a further period of one year from the date of winding up order i.e. till 30/03/2011, can be the excluded for the purpose of computation of limitation period of present appeal. In the present case, the impugned order by learned CIT(A) was passed on 03/12/2007. As the due date for filing the appeal against the aforesaid impugned order before the Tribunal was falling during the exclusion period, as stated in section 458A of the Companies Act, 1956, in our considered view, the limitation period in the present case started from 31/03/2011 The present appeal was filed by the assessee on 16/05/2018, i.e. after a more than 7 years from 31/03/2011. Further, in the present case, despite the cause of action having arisen after passing of the impugned order by learned CIT(A) and Official Liquidator also having power to initiate proceedings in the name of and on the behalf of the assessee, with the leave of the Court, no action was taken for filing the appeal against the impugned order. Section 446 of the Companies Act, 1956 only stays the commencement or continuation of any suit or other legal proceeding, except with the leave of the Court, inter-alia, after passing of the winding up order. The entire purpose or the scheme behind this section is to protect the company, if the order of winding up is made or a provisional liquidator is appointed, so that the Court itself, if possible, disposes of the matters pertaining to the assets and properties of the company. However, neither in the application nor in the affidavit supporting the same there is any claim or any supporting document that the Hon ble Court was approached for such permission on behalf of the assessee. From the facts stated in the affidavit, it is evident that the assessee initiated the process of filing appeal against the impugned order only after the Official Liquidator handed over the position of factory and other assets to the management of the assessee, pursuant to recall of winding up order dated 30/03/2010 by the Hon ble High Court. Thus, in view of above and in the facts and circumstances of the present case, we are of the considered view that the assessee has failed to prove any sufficient cause for not preferring the appeal within the limitation period.

Summary

Issues:
Challenging ex parte order under section 250 of the Income Tax Act, 1961 for assessment year 2003-04. Condonation of delay in filing the appeal.

Analysis:
The appellant challenged an ex parte order passed by the Commissioner of Income Tax (Appeals) regarding disallowances made in the assessment year 2003-04. Despite multiple adjournments at the request of the appellant, the appeal proceeded ex parte as neither the appellant nor any representative appeared. The appellant raised grounds related to disallowances on depreciation, deferred tax adjustment, and bad debts, contesting the decisions made by the tax authorities. The appellant also claimed that the additions and disallowances were illegal and without jurisdiction, and the order lacked a reasonable opportunity for the appellant to be heard.

The appellant filed the appeal with a condonation application for a significant delay of 10 years in filing the appeal. The delay was attributed to ongoing labor disputes, attachment of premises by authorities, and financial distress leading to the appellant's promoters being declared insolvent. The delay was supported by various legal proceedings and orders affecting the appellant's ability to pursue assessments and appeals. The appellant sought condonation based on these circumstances.

The Tribunal considered the legal implications of the delay in filing the appeal. The provisions of the Companies Act, 1956, regarding winding up proceedings and limitation periods were analyzed in detail. The Tribunal highlighted the requirement for leave from the Court for legal proceedings after a winding up order and the exclusion of specific periods for limitation computation. The Tribunal examined the appellant's claim of sufficient cause for the delay and found that the appellant failed to prove a valid reason for not filing the appeal within the limitation period. As a result, the appeal was dismissed on the grounds of being time-barred, keeping the raised issues open for future adjudication if they arise.

In conclusion, the Tribunal dismissed the appeal due to the appellant's failure to establish sufficient cause for the significant delay in filing the appeal. The legal analysis focused on the provisions of the Companies Act, 1956, related to winding up proceedings and limitation periods, emphasizing the importance of timely compliance with legal requirements in initiating appeals after winding up orders.