Mr. Raj Kumar Gupta & Anr. vs The Union Of India & Ors.

Sudip Deb, J.:-

This appeal is directed against the order dated 26^th March, 2025 passed by the Income Tax Appellate Tribunal (ITAT) “B” Bench, Kolkata in ITA No. 1717/Kol/2024 relating to the Assessment Year 2012-2013 at the behest of the appellant/assesse company.

The appellants have proposed the following substantial questions of law:-

At the outset, we have asked the learned counsel for the appellants to address us as to whether the questions of law proposed by the appellants are at all substantial questions of law or not.

The learned counsel for the appellants submits that the Learned Income Tax Tribunal erred in law in dismissing the appeal solely on technical grounds of delay and defects without adjudicating the same on merits which caused grave miscarriage of justice to the appellants.

It is also argued that the Learned Tribunal has erred in law in refusing to condone the delay in filing the appeal despite sufficient cause being shown, thereby violated the settled principles governing condonation of delay and access to justice. It is also argued that the order of the Learned Tribunal was passed ex parte, without proper service of notice and that amounts to violation of principles of natural justice.

It is also argued that addition of Rs.2,71,00,000/- under Section 68 of the Income Tax Act, 1961, which is hereinafter referred to as “the said Act”, is not sustainable in law when the appellant has duly established the identity, creditworthiness and genuineness of the share capital and share premium transactions.

We have heard the learned counsel appearing for the appellants. We have not called upon the learned advocate for the respondent as the appeal has not been admitted.

Before deciding the questions formulated by the appellants in the instant appeal, it is important to discuss the facts of the instant case which are stated hereinafter.

The appellant No. 2 had filed the return of income for the Assessment Year 2012-2013 on 3^rd June, 2013 assessing the income at Rs.2,769/-. Thereafter, the case was selected for scrutiny under CASS system of the said Act and accordingly notice was issued under Section 143(2) of the said Act with the endorsement that “large share premium received”. Thereafter, the Assessment Officer vide order dated 23^rd March, 2015 had passed an order under Section 143(3) of the said Act determining the total income at Rs.2,71,24,875/-. While doing so, the Assessing Officer had held that during the financial year 2011-2012 a sum of Rs.2,71,00,000/- was treated as unexplained cash credit in the books of account of the appellant/assessee company and the same was included in the total income of the appellant/assessee company for the Assessment Year 2012-2013 under Section 68 of the said Act.

In furtherance thereto, penalty proceeding under Section 271(1)(c) had also been initiated separately for concealment of income and furnishing inaccurate income particulars. The Assessing Officer had also held net tax payable was Rs.1,27,60,980/-.

Thereafter, the notice of demand was made as contemplated under Section 156 of the said Act.

The appellant/assessee company had challenged the said order by filing an appeal and the Commissioner of Income Tax vide order dated 4^th April, 2017 had affirmed the order of the Assessing Officer. Challenging the said order the appellant/assessee company had preferred an appeal before the Income Tax Appellate Tribunal “B” Bench, Kolkata on 13^th August, 2024 and the Learned Tribunal by an order dated 26^th March, 2025 dismissed the appeal of the appellant holding the same as time barred.

While doing so, the Appellate Tribunal has categorically recorded that there is a delay of 2628 days in filing the appeal before the Tribunal. The Tribunal has also recorded no application for condonation of delay has been filed before the Tribunal. The Appellate Tribunal has also held that the appellant/assessee company even after giving multiple opportunities, has not rectified the defects in the appeal. The appeal was dismissed in limine. The instant appeal has been filed challenging the said order the Tribunal.

We have gone through the order of the Tribunal. We find from the impugned order that the Appellate Tribunal has categorically recorded that there is a delay of 2628 days in preferring the appeal and no satisfactory explanation has been offered by the appellant/assessee company. The Appellate Tribunal has also categorically recorded that no application for condonation of delay has been filed. We also find from the impugned order that despite giving several opportunities, the appellant/assessee company has also not rectified the defects in the appeal. We further find that though in the instant stay petition the appellant/assessee company has said that the said order of the Appellate Tribunal was an ex parte order but the fact remains several applications had been filed by appellant/assessee company seeking adjournment of hearing of the appeal before the Tribunal.

First of such application was filed on 9^th December, 2024 by one Kunal Goswami as Director of the appellant/assessee company. Thereafter, second application for adjournment was filed on 7^th January, 2025 by one Raj Kumar Gupta as Director of the appellant/assessee company. Then again on 24^th March, 2025 a third application for adjournment was filed by the said Kunal Goswami as Director of the appellant/assesse company.

It is evident from the impugned order that the Tribunal has categorically recorded these facts and also recorded that the signature of Kunal Goswami differed. Such finding of the Tribunal was obviously after considering the two adjournment petitions filed by the said Kunal Goswami. Such finding of the Tribunal based on contemporaneous documents cast serious doubts on the bona fide intentions of the appellant/assesse company so far as pursuing the appeal was concerned.

Therefore, the plea of the appellant/assessee company that it did not have any knowledge of the proceeding pending before the Appellate Tribunal is not acceptable to us. We are of the considered view that there was an inordinate delay in filing the instant appeal before the Tribunal and such delay had not been explained at all by appellant/assessee company. This would also be evident from the fact that no application for condonation of delay had been filed before the Tribunal. The appeal was also defective. This apart, several adjournment petitions were filed by the appellant/assessee company through their Directors. Therefore, the appellant/assessee had full knowledge of the proceeding. What appears to us, the appellant/assessee company did not want to proceed with the appeal deliberately and their conduct is mala fide and that cannot be appreciated. The conduct of the appellant/assessee company has been indolent. No explanation had been offered by the appellant/assessee. There was no sufficient cause for which the delay could have been condoned by the Appellate Tribunal.

In view of such, we are of the considered view that the Appellate Tribunal has correctly dismissed the appeal preferred by the appellant/assessee company solely on the ground of delay. Seeing the conduct of the appellant/assessee company, we see no reason to interfere with the order of the Tribunal.

It is settled law that a party has to prove “sufficient cause” for condoning the delay. In the instant case, the appellant/assessee company has miserably failed to do so.

In view of such, the instant appeal is dismissed. GA No. 1 of 2026 which is an application for stay is also dismissed accordingly.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance with the all necessary formalities.