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2023 (2) TMI 595 - HC - Income TaxMiscelleneous application filed for condoning the delay in filing the appeal before the ITAT - ex-parte order was passed - ITAT dismissed the same on the ground of delay of 5 years 06 months and 23 days in preferring the miscellaneous appeal - HELD THAT - The facts of the case reveal that the appellant had filed an application u/s 254(2) of the Act of 1961 stating that he was not able to attend the hearing and the ITAT dismissed the case of the appellant in his absence. However, earlier the matter was adjourned sine die since the ITAT was not available. No notice for next hearing was received by the appellant. The facts of the case further reveal that in respect of the appellant's appeal, an ex-parte order was passed on 13.07.2015 and miscellaneous application was preferred u/s 254(2) of the Act of 1961 which was decided vide order dated 26.09.2022. The same was dismissed as it was preferred after expiry of six months on account of the fact that Section 254(2) of the Act of 1961 provides for a limitation of six months. Keeping in view the aforesaid judgment passed in the case of CIT Vs. S. Cheniappa Mudaliar 1969 (2) TMI 10 - SUPREME COURT certainly the right to file appeal cannot be extinguished as the appellant would be left remedyless. Resultantly, the impugned orders are hereby set aside and the present appeal stands allowed.
Issues:
1. Delay in filing the appeal before the ITAT. 2. Dismissal of the miscellaneous appeal by ITAT due to delay. 3. Maintainability of writ petition against ITAT's order. 4. Dismissal of appellant's case by ITAT in absence. 5. Interpretation of Section 254(2) of the Income Tax Act, 1961. 6. Consideration of 'sufficient cause' for restoration of appeal. 7. Impact of Covid-19 period on limitation. 8. Amendment of Section 254(2) of the Act. Analysis: 1. The appeal under Section 260A of the Income Tax Act, 1961 challenged the order of the ITAT dismissing a miscellaneous application for condoning delay in filing an appeal. The ITAT found a delay of 5 years, 6 months, and 23 days, leading to the dismissal of the appeal due to the appellant's lack of interest in pursuing it. Section 254(2) of the Act does not empower the Tribunal to condone such delays, rendering the miscellaneous appeal not maintainable. 2. The appellant, aggrieved by the ITAT's decision, approached the High Court through a writ petition, which was deemed not maintainable against the original ITAT order. However, the appellant was granted liberty to file the present income tax appeal under Section 260A of the Act, leading to the current proceedings before the High Court. 3. The appellant's argument centered on the mandate of Section 254(1) of the Act, emphasizing the disposal of appeals on merits even in the absence of the assessee. Additionally, the impact of the Covid-19 period on the limitation period was raised, along with various reasons such as the death of the lawyer, unavailability of documents, and miscommunication from the department, constituting 'sufficient cause' for restoration of the appeal. 4. The High Court, considering the precedents and the amended Section 254(2) of the Act, held that the right to file an appeal cannot be extinguished, ensuring the appellant is not left remedyless. Consequently, the impugned orders of the ITAT were set aside, and the present appeal was allowed, remanding the matter back to the ITAT for a fresh decision on the appeal bearing ITA No. 206/Ind/2013 on merits, with directions to expedite the process within three months. 5. The High Court directed the parties to appear before the ITAT on a specified date, effectively disposing of the appeal while ensuring compliance with the rules.
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