2023 (11) TMI 211 - AT - Income Tax

Condonation of delay in filling appeal - delay of 328 days - appeal against Revision order u/s 263 - Claiming that assessee did not receive proper legal advice at that point of time, the assessee came forward with this appeal with a delay of 328 days - HELD THAT - The affidavit does not specify when did the assessee approach the counsel and got the advice. There is no reason as to why the assessee sought such an advice at a belated stage. There is no denial of the fact that the consequential order was also passed. On a consideration of all these facts, we are convinced that the assessee wanted to have the best of both the worlds and having tested its luck before the AO in the consequential proceedings and having lost the same, it came back to agitate the legality of the impugned order. Assessee is not an individual, but it is a commercial entity with a battery of legally trained people available for assistance. The pleas available to the individual cannot be taken by the commercial entities with all the legal paraphernalia at their disposal. If a party like assessee is permitted to conduct litigation in this way, we are afraid there would be no end to litigation and it would be against the public policy. In the case of SRK Infracon (India) Pvt. Ltd 2023 (2) TMI 1208 - ITAT HYDERABAD a Co-ordinate Bench of the Tribunal considered this aspect of assessee filing the appeal with considerable delay, having lost the case in consequential proceedings and held that in such an event, it would not be in the public interest to condone the delay - Appeal of the assessee dismissed.

Summary

Issues involved:
The judgment addresses the delay in filing an appeal by the assessee against the order of the Principal Commissioner of Income Tax (PCIT) under section 263 of the Income Tax Act, 1961.

Details of the judgment:
The assessee, engaged in construction and sale of plots, filed a return of income for the assessment year 2017-18. The assessment was completed with some disallowance under section 37(1) of the Act. Subsequently, the PCIT found errors in the assessment order related to levelling expenses claimed by the assessee, resulting in a shortfall of Rs. 34,81,044. The assessee appealed against this decision with a delay of 328 days, arguing that the PCIT failed to appreciate that there was no error in the assessment. The Delay was contested by the Department, stating that the cause attributed by the assessee was not genuine and against public policy.

The Tribunal considered the reasons for the delay in filing the appeal. The assessee claimed that they initially believed the PCIT's directions would lead to a fresh assessment by the Assessing Officer, but later realized the PCIT had quantified the disallowance. The Tribunal noted that the assessee's delay in seeking legal advice and subsequent appeal indicated an attempt to benefit from both avenues. The Tribunal emphasized that commercial entities like the assessee, with legal assistance, should not be allowed to engage in prolonged litigation against the State.

Referring to a similar case, the Tribunal held that it would not be in the public interest to condone the delay in filing the appeal. Consequently, the Tribunal declined to condone the delay and dismissed the appeal without delving into its merits.

In conclusion, the Tribunal dismissed the appeal of the assessee due to the uncondoned delay in filing the appeal, emphasizing the need to discourage prolonged litigation against the State.