TaxTMI 
TaxTMI 
2023 (8) TMI 521
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....ny had filed several appeals in the past and is very much aware of the procedures involved in filing of appeals and therefore, the said reason is not tenable. It is also stated in the counter affidavit that the delay of 2139 days in filing the appeal is enormous and the assessee had not come forward with valid explaination and hence, the petition to condone the delay is liable to be dismissed. 4. We have perused the affidavit filed in support of the petition to condone the delay, wherein, two reasons have been set out, viz., i) That the petitioner came to know that the Tribunal erred in dismissing the appeal in ITA 687/MDS/2015 as being repetitive, only on receipt of the order of Income Tax Appellate Tribunal (in short "ITAT") dated 12.08.2022, involving the same issue for other years. ii) That the officer assigned with the litigation work while forwarding the common order dated 07.10.2016 had inadvertendly left out I.T.A.No.687/Mds/2015 misunderstanding it to be repetitive appeal, while challenging other orders in I.T.A.Nos.1039/Mds/2014,2108/Mds/2012 and 884/Mds/2015. Thereafter, the petitioner faced severe financial crisis which led to proceedings being initiated under Inso....
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....ed to the activities related to the business. 5.1. The above directions of the DRP was given effect to vide order dated 30.12.2014 and the order of assessment under Section 143(3) read with Section 144C(13) read with Section 92CA(3) of the IT Act, came to be passed making the following additions /disallowances: (a) Transfer Price Addition, (b) Disallowance of Business Expenditure, (c) Disallowance under Section 14A of the IT Act. 6. Aggrieved by the above order, the petitioner filed an appeal before the ITAT on 01.04.2015. The Tribunal clubbed all the appeals filed by the petitioner / revenue as well as the cross objections filed by the petitioner. The following table may be useful in this regard: Assessment Year ITA No. Assessee / Department 2008-09 IT 1390/CHNY-2016 A IT 1417/CHNY-2016 D IT 1391/CHNY-2016 (Penalty) A IT 1421/CHNY-2016 (Penalty) D 2009-10 IT 1040/CHNY-2014 A IT 1075/CHNY-2014 D IT 51/CHNY-2014 A - CO 2010-11 IT 687/2015 A IT 663/CHNY-2015 D 7. All the above appeals / cross objections were heard together and were disposed of, vide common order dated 07.10.2016. The Tribunal found that the claim of the assessee/ petitioner under Se....
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....itiated under the IBC before the NCLT which was carried all the way upto the Hon'ble Supreme Court, however, at Paragraph 14 of the affidavit extracted supra, it is stated that the petitioner realized that the dismissal of the appeal in ITA No.687/Mds/2015 as being repetitive, was incorrect only upon receipt of the order dated 12.08.2022. Now, if the second reason is to be taken to reflect the true state of affairs, the reason of inadvertence and insolvency proceedings being the reason for the delay would fail. The question of inadvertence or being occupied with resolving the financial crisis and the resultant Insolvency Proceedings would not arise, if the petitioner was unaware until 12.08.2022 of the error committed by the Tribunal in dismissing ITA No.687/Mds/2015 on the ground of being a repetitive appeal. 10. We also find that the attempt to suggest that the delay is only in view of the fact that the petitioner came to know that the subject appeal i.e., ITA No.687/Mds/2015 is not repetitive, is again factually incorrect inasmuch as the petitioner had on receipt of the impugned order dated 07.10.2016 filed a miscellenous petition as early as on 08.03.2017 wherein, the orde....
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....t the dismissal of ITA No.687/Mds/2015 as repetitive, is incorrect and untrue for the reasons setout at paragraphs 5 to 7 of the affidavit filed in support of the Miscellaneous Petition, filed before the ITAT to reopen ITA No.687/Mds/2015 dated 07.10.2016 would clearly reveal that the petitioner realised the error and after taking steps to redress the error/grievance by filing a miscellaneous petition before the Tribunal to restore, did not pursue it any further on its rejection. 12. Having found that the reasons adduced are untrue and lacking bonafide we do not intend to exercise our discretion to condone the delay for it is trite law that while examining whether there was "sufficient cause" for the delay, the Courts would consider if the petitioner had been diligent and acted bonafide. We find that there is an inordinate delay of 2139 days and the reasons adduced are not convincing rather show that the petitioner was negligent, lethargic and casual in availing the remedy of appeal. More importantly, we are not convinced with the bonafide of the petitioner who had raised grounds which apart from being untrue, are mutually destructive and thus unacceptable. 13. Before we part, we....