2025 (5) TMI 2235 - SCH - Income Tax

Delay in filing appeal against ITAT order could not justify dismissal; appeal restored and relisted with appearance obligation.

Delay in prosecuting a statutory appeal against an ITAT order was held not to justify dismissal where the High Court dismissed for the appellant's failure ... Delay filling Appeal against ITAT order [2018 (4) TMI 1581 - ITAT CUTTACK] - date of filing of this appeal six years have passed As decided by HC [2024 (4) TMI 1372 - ORISSA HIGH COURT] from the date of filing of this appeal six years have passed and during all these periods no endeavour has been made from the side of the revenue to pursue this matter and, when this Court asked, learned counsel appearing for the revenue could not be able to state the position of the case at this point of time. HELD THAT:- A statutory appeal preferred by the appellant has been dismissed by a Division Bench of the High Court on strange grounds. The first ground is that when a query was made to the learned counsel for the appellant to state what happened during the period from 2018 to 2024, he was unable to answer that question. The second ground is that no endeavour was made by the appellant to pursue the matter by getting it listed. If the appeal was not listed for hearing, it is not the fault of the appellant and surely the appeal cannot be dismissed on the ground that the appellant made no efforts to get the appeal listed. Failure to answer the question put by the Bench is no ground to dismiss the appeal. Accordingly, we set aside the impugned order of HC and restore the appeal to the file of the High Court of Orissa at Cuttack. The restored appeal shall be listed before the roster Bench on 26th June, 2025 in the morning when the parties to the appeal shall be under an obligation to appear before the roster Bench. No further notice shall be served by the High Court to the parties. Issues: Whether the High Court was justified in dismissing the statutory appeal on the grounds that (i) learned counsel for the appellant could not explain events between 2018 and 2024 and (ii) the appellant made no endeavour to get the appeal listed.Analysis: The question concerns the propriety of dismissing an appeal for perceived non-prosecution based on counsel's inability to answer factual queries and on absence of active efforts by the appellant to obtain listing. The judgment examines principles governing condonation of delay and restoration/continuance of appeals, including that an appeal not being listed ordinarily is not attributable to the appellant and dismissal for such reason requires careful application of procedural fairness. The reasoning addresses whether failure to answer a Bench's factual question or absence of demonstrable efforts to list can, without more, justify dismissal; it concludes such grounds are insufficient in the circumstances and that procedural remedies like restoration and directed listing are appropriate instead of dismissal on those bases.Conclusion: The impugned dismissal on the cited grounds is set aside; the appeal is restored to the High Court file and directed to be listed as ordered, with all questions on merits left open. Ratio Decidendi: An appellate court should not dismiss a statutory appeal solely because counsel cannot immediately explain a historical span or because the appellant did not independently pursue listing; dismissal for non-prosecution requires substantiated culpability and procedural fairness, and where absent, restoration and directed listing are the appropriate remedies.