Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 1/6 IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.08.2020 CORAM HON'BLE DR.JUSTICE VINEET KOTHARI AND HON'BLE MR.JUSTICE KRISHNAN RAMASAMY T.C.A.No.359 of 2017 M/s. Rathna Stores Pvt. Ltd. No.79, Usman Road T.Nagar, Chennai - 600017. Appellant vs. Commissioner of Income Tax III, Chennai ... Respondent Prayer ::- Appeal filed against order of Income Tax Appellate Tribunal, "C" Bench, Chennai, in ITA No.113/Mds/2016 dated 29.04.2016. For appellant : Mr.S.Sridhar For respondent : Mr.T.Ravikumar JUDGMENT (Made by DR.VINEET KOTHARI, J.) Court was held by Video Conference, as per Resolution of Full Court dated 3 July 2020, by Judges at their respective residence and counsel, staff of Court appearing from their respective residences. http://www.judis.nic.in Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 2/6 2. This appeal has been filed by Assessee under Section 260A of Income Tax Act, against order of Tribunal dated 29 April 2016, dismissing appeal of Assessee against order of Commissioner of Income Tax, under Section 263 of Act. said appeal was filed by Assessee with huge delay of 1333 days, approximately four years. Assessee did not file any application seeking condonation of delay, along with affidavit, before Tribunal, explaining reasons for delay, despite opportunity given by Tribunal on 14 March 2016 and matter was adjourned to 17 March 2016. Paragraph No.2 of order of Tribunal is quoted below for ready reference. 2.When appeal was taken up for hearing, it was found that Assessee has not filed any petition for condonation of delay of 1333 days in filing appeal before Tribunal. Despite service of defect notice (AD on record) mentioning appeal filed by Assessee is barred by 1333 days, Assessee has failed to file any petition for condonation of huge delay. Initially, hearing of appeal was fixed on 14.03.2016 and at request of learned for Assessee, hearing was adjourned to 16.03.2016. Again at request of learned counsel for Assessee, hearing was adjourned to 17.03.2016. When appeal was taken up for hearing on 17.03.2016, though learned counsel http://www.judis.nic.in Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 3/6 for Assessee has appeared, but could not file any petition for condonation of delay in filing appeal, Bench was of opinion that appeal filed by Assessee is not maintainable. Accordingly, appeal filed by Assessee is dismissed as not maintainable. 3. Mr.S.Sridhar, learned counsel for appellant submitted that Assessee unfortunately waited for passing of penalty order, for which direction was given by learned Commissioner of Income Tax under Section 263 of Act. When penalty order was passed by Commissioner of Income Tax, Assessee filed said appeal before learned Tribunal, challenging said order under Section 263 of Act itself and in that process, delay occurred. He submitted that on 14 March 2016 opportunity was given to Assessee to file application seeking condonation of delay with affidavit. time given by learned Tribunal was very short and therefore, he could not file application and application came to be dismissed by Tribunal on 29 April 2016. 4. learned counsel for Revenue Mr.Ravikumar supported impugned order and submitted that for want of application filed before learned Tribunal, for seeking condonation of delay, learned Tribunal was justified in dismissing appeal on account of huge delay of 1333 days. http://www.judis.nic.in Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 4/6 5. Having heard learned counsel for parties, we do not find any substantial questions of law arising in present appeal. However, we are of opinion that learned Tribunal could have condoned delay upon application supported by affidavit if reasonable ground for delay was made out by Assessee. 6. Under these circumstances, we are inclined to allow present appeal and remand matter back to learned Tribunal by giving opportunity to Assessee to file such application for seeking condonation of delay, along with affidavit of Assessee or its counsel, subject to payment of cost of Rs.25,000/- (Rupees Twenty Five Thousand only) by Assessee to respondent Revenue Department. 7. In case cost of Rs.25,000/- (Rupees Twenty Five Thousand only) is deposited by Assessee with respondent Assessing Authority, within period of four weeks from today, impugned order dated 29 April 2016 shall stand set aside and matter shall stand restored to learned Tribunal for aforesaid Assessment Year 2007-08. http://www.judis.nic.in Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 5/6 8. Assessee may file his application seeking condonation of delay along with affidavit, explaining circumstances and reasons for delay in filing appeal, which may be considered by learned Tribunal, in accordance with law. 9. With this observation, appeal is disposed of in manner indicated above. (V.K.,J.) (K.R.,J.) 19.08.2020 tar To Commissioner of Income Tax III, Chennai http://www.judis.nic.in Order dt.19.08.2020 in T.C.A.No.359 of 2017 Rathna Stores Pvt. Ltd vs.Commr. Of I.T.,Chennai 6/6 DR.VINEET KOTHARI, J. and KRISHNAN RAMASAMY, J. (tar) T.C.A.No.359 of 2017 19.08.2020 http://www.judis.nic.in Rathna Stores Pvt. Ltd. v. Commissioner of Income-tax III, Chennai