2011 (4) TMI 1322 - AT - Income Tax

Assessee's appeal dismissed by ITAT due to 1049-day delay in filing - Lack of sufficient reason for delay

The ITAT dismissed the Assessee's appeal against the order u/s 263 of the IT Act due to a delay of 1049 days in filing the appeal. The ITAT found that the ... Condonation of delay - requirement of reasonable cause for condonation - finality of an order passed under section 263 and its effect on appealability - acceptance of an order by conduct - appeal dismissed as time barredCondonation of delay - requirement of reasonable cause for condonation - acceptance of an order by conduct - Condonation of delay of 1049 days in filing the appeal against the order passed under section 263 was refused. - HELD THAT: - The Tribunal examined the factual sequence: the assessee received the order under section 263, did not immediately challenge it, and proceedings were carried out by the Assessing Officer pursuant to the section 263 direction. The assessee thereafter pursued an appeal which the ITAT dismissed on the premise that the section 263 order had become final. The assessee only after that dismissal sought to file an appeal against the section 263 order, resulting in a delay of 1049 days. The Tribunal found that the assessee had effectively accepted the section 263 order by its conduct and had not agitated it when first received. The later explanation that the assessee was under a bonafide impression about the correct forum and the sequence of appeals was held not to constitute a cogent or reasonable cause for such prolonged delay. Applying the requirement that a reasonable cause must be shown for condonation, the Tribunal concluded that the delay could not be condoned and that the appeal was therefore time-barred. [Paras 3, 4]Delay of 1049 days is not condoned and the appeal is dismissed as time barred.Final Conclusion: The appeal against the order passed under section 263 was dismissed for want of prosecution in time: the application for condonation of a 1049-day delay was rejected as the assessee had accepted the order by conduct and did not furnish a cogent reasonable cause for the delay. Issues involved: Condonation of delay in filing appeal against order u/s 263 of the IT Act by the Assessee.Summary:The appeal by the Assessee was directed against the order dated 16.3.2007 passed u/s 263 of the IT Act by the Ld. Commissioner of Income Tax, Delhi-V, New Delhi. The Assessee filed a condonation petition citing delay of 1049 days in filing the appeal. The ITAT, after considering the rival contentions, noted that the Assessee had not challenged the order of the C.I.T. when it was received initially. The ITAT observed that the order passed u/s 263 had become final, as the C.I.T. had decided the issue himself and directed the Assessing Officer to re-compute the income based on his decision. The Assessee later filed an appeal against the C.I.T. order u/s 263 on 8.4.2010, much later than the initial order. The ITAT found that the delay in filing the appeal was not liable to be condoned, as the Assessee had accepted the C.I.T.'s order u/s 263 initially and changed its mind after a significant delay. Consequently, the appeal was dismissed as time-barred on the grounds of lack of cogent reason for the delay.In conclusion, the delay of 1049 days in filing the appeal against the order u/s 263 was not condoned, leading to the dismissal of the Assessee's appeal by the ITAT.