Orissa High Court
M/S. Kamyab Television Private vs Principal Commissioner Of Income .... ... on 1 September, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9422 of 2025
M/s. Kamyab Television Private .... Petitioner
Limited
Mr. Sunil Mishra, Advocate
-versus-
Principal Commissioner of Income .... Opposite Parties
Tax, Odisha and others
Mr. Subash Chandra Mohanty, Senior Standing Counsel
along with Mr. Avinash Kedia, Junior Standing Counsel
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 01.09.2025
01. 1. Order dated 26th November, 2024 passed in Appeal
No.NFAC/2016-17/10154919 by the Commissioner of Income
Tax (Appeals), Income Tax Department under Section 250 of
the Income Tax Act, 1961, (vide Annexure-4) refusing to
condone the delay of 886 days in filing and consequent
thereupon dismissing the said appeal, is subject matter of
challenge in this instant writ petition.
2. The petitioner, Private Limited Company, was selected for
scrutiny assessment under Section 143 of the Income Tax Act,
1961 (for short, "the IT Act") pertaining to the assessment year
2017-18 and was issued with notice under Section 143(2) for
production of documents. Such proceeding culminated in ex
parte order of assessment dated 11th December, 2019 under
Section 144, as a consequence of non-appearance due to
unavoidable circumstances, raising a demand to the tune of
Rs.8,19,87,083/- by the Deputy Commissioner of Income Tax,
Circle-1(1), Bhubaneswar. Aggrieved thereby in order to
ventilate its grievance, an appeal has been preferred on 9 th
March, 2022.
2.1. Since there was delay of 886 days in preferring the said appeal,
a petition with a prayer to condone the delay has also been
filed. Vide order dated 26th November, 2024 the Commissioner
of Income Tax (Appeals)-Appellate Authority observing that
absence of documents (medical prescriptions) constitutes
insufficient cause shown by the petitioner for consideration of
condonation of inordinate delay, refused to allow the petition
by not exercising power conferred under Section 249 of the IT
Act stemming on Perumon Bhagvathy Devaswom, Perinadu
Village Vs. Bhagavi Amma (Dead) by LRs., (2008) 8 SCC 321,
Balwant Singh (Dead) Vs. Jagdish Singh (2010) 8 SCC 685,
Shiv Dass Vs. Union of India (UOI) and others, AIR 2007 SC
1330, University of Delhi Vs. Union of India & others, (2020)
13 SCC 745 (Civil Appeal No.9488 of 2019, disposed of on
17.12.2019), Ajay Dabra Vs. Pyare Ram & others, (2023) SCC
OnLine SC 92, Mahant Bikram Dass Chela Vs. Financial
Commissioner, Revenue, Punjab, Chandigarh and others, AIR
1977 SC 2221, Basawaraj and another Vs. Special Land
Acquisition Officer, (2013) 14 SCC 81, State of Uttar Pradesh
and others Vs. Satish Chand Shivhare and Brothers, (2022)
SCC OnLine SC 2151.
2.2. Being dissatisfied, the petitioner approached this Court by way
of filing this present writ petition invoking extraordinary
jurisdiction under Articles 226 and 227 of the Constitution of
India.
3. Mr. Sunil Mishra, learned counsel submitted that erroneous
approach of the appellate authority led the petitioner to come up
before this Court beseeching an opportunity for hearing on
merit of the appeal as the appellate authority failed to exercise
his discretion conferred under Section 249 of the IT Act in
favour of the petitioner by appreciating fact which prevented in
filing appeal within the period specified.
3.1. Drawing attention of this Court to the petition dated 14 th June,
2022 filed before the appellate authority praying therein for
condonation of delay in filing the appeal, he submitted that
affidavit along with medical prescriptions were, in fact,
enclosed to the said petition, which can be ascertained from
paragraph-5 and enclosures given at the foot of the said petition
itself. The appellate authority has misdirected himself as if no
documents were filed before him justifying sufficient cause
preventing the petitioner in filing appeal within specified period
and on misappreciation of evidence on record said authority
ignored to consider the petition for condonation of delay in
terms of Section 249 of the IT Act in proper perspective.
3.2. By way of an additional affidavit dated 9th May, 2025 sworn to
by the Managing Director of the petitioner-company enclosing
therewith medical prescriptions, learned counsel for the
petitioner submitted that the petitioner was under prolonged
treatment for neurological issues since 2016 till 2020. In the
year 2020, pandemic situation prevailed over entire world and
by virtue of order dated 10th January, 2022 passed in
Miscellaneous Application No.21 of 2022 in Miscellaneous
Application No.665 of 2021 in Suo Motu Writ Petition (C) No.3
of 2020 in Re: Cognizance for Extension of Limitation, the
Hon'ble Supreme Court extended the period of limitation for
filing cases/appeals within ninety days from 01.03.2022 with
respect to matters for which normal period of limitation lapsed
during 15.03.2020 till 28.02.2022. Since the appeal could be
filed on 9th March, 2022, the appellate authority should have
taken a pragmatic view instead of stressing upon technical
niceties. He, hence, submitted that in exercise of extraordinary
power, this Court by taking lenient view may show indulgence
in this matter by setting aside the impugned order dated 26 th
November, 2024 vide Annexure-4 and allow the petition by
condoning the delay in filing the appeal so as to enable him to
place material and advance argument on merit of the appeal
before the appellate authority.
3.3. He, thus, fervently prayed for restoration of appeal for
adjudication on merit of the matter.
4. Mr. Subash Chandra Mohanty, learned Senior Standing
Counsel along with Mr. Avinash Kedia, learned Junior
Standing Counsel appearing for the opposite parties opposing
the submissions and arguments so advanced by the learned
counsel for the petitioner urged that being indolent the
petitioner is not entitled to be protected and relief as sought for
cannot be granted at this belated stage. Since the assessment
order raising demand has been passed under Section 271AAC
pertains to assessment year 2017-18 and the petitioner instead
of discharging its liability, by filing the appeal with inordinate
delay made an attempt to protract the litigation.
4.1. Therefore, it is insisted that the writ petition is liable to be
dismissed in limine with exemplary cost.
5. Heard Mr. Sunil Mishra, learned counsel appearing for the
petitioner and Mr. Subash Chandra Mohanty, learned Senior
Standing Counsel along with Mr. Avinash Kedia, learned
Junior Standing Counsel appearing for the opposite parties.
6. Perusal of the record transpires that the assessment order
pertaining to assessment year 2017-18 was passed under
Section 271AAC of the IT Act ex parte. The appeal challenging
said assessment order was filed with a delay of 886 days. At the
stage of hearing by way of an additional affidavit dated 9 th
May, 2025, serving a copy thereof on learned Junior Standing
Counsel appearing for the opposite parties, the learned counsel
appearing for the petitioner has relied heavily on the copies of
medical prescriptions to demonstrate that the petitioner was
suffering from prolonged serious ill-health with neurological
issues and undergoing treatment since 2016 till June, 2020.
6.1. It is not unknown that the entire world was engulfed with
Covid-19 Pandemic since March, 2020 and the Hon'ble
Supreme Court of India has passed very many judgments/orders
extending the period of limitation specified under different
statutes for filing cases/appeals, which expired after 15th March,
2020.
6.2. It is pertinent to take note of order dated 10th January, 2022, of
Supreme Court In Re: Cognizance for Extension of Limitation
(supra), paragraph-5 whereof contains as follows:
"Taking into consideration the arguments advanced by learned
counsel and the impact of the surge of the virus on public
health and adversities faced by litigants in the prevailing
conditions, we deem it appropriate to dispose of the M.A. No.21
of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in
continuation of the subsequent orders dated 08.03.2021,
27.04.2021 and 23.03.2021, it is directed that the period
from 15.03.2020 till 28.02.2022 shall stand excluded for
the purposes of limitation as may be prescribed under
any general or special laws in respect of all judicial or
quasi-judicial proceedings.
II. Consequently, the balance period of limitation remaining
as on 03.10.2021, if any, shall become available with
effect from 01.03.2022.
III. In cases where the limitation would have expired during
the period between 15.03.2020 till 28.02.2022,
notwithstanding the actual balance period of limitation
remaining, all persons shall have a limitation period of
90 days from 01.03.2022. In the event the actual balance
period of limitation remaining with effect from
01.03.2022 is greater than 90 days, that longer period
shall apply.
IV. It is further clarified that the period from 15.03.2020 till
28.02.2022 shall also stand excluded in computing the
periods prescribed under Sections 23(4) and 29A of the
Arbitration and Conciliation Act, 1996, Section 12A of
the Commercial Courts Act, 2015 and provisos (b) and
(c) of Section 138 of the Negotiable Instruments Act,
1881 and any other laws, which prescribe period (s) of
limitation for instituting proceedings, outer limits (within
which the court or tribunal can condone delay) and
termination of proceedings."
6.3. Laying emphasis on said order coupled with the copies of
prescriptions, the learned counsel for the petitioner submitted
that since 2016 till June, 2020 the petitioner was under
continuous treatment having suffered health hazards, and the
appeal being filed within the period as stipulated by the
Hon'ble Supreme Court of India, the benefit ought to have been
extended to the petitioner by the appellate authority. As is
perceived, the aforesaid documents are available with the
petitioner, which formed part of the additional affidavit. The
learned counsel appearing for the Income Tax Department are
not in a position to place on record material to show whether
such evidence was available with the appellate authority at the
time of consideration of petition for condonation of delay,
though the impugned order merely made statement that such
affidavit with prescriptions were not produced by the petitioner.
Nonetheless without going into any controversy, it is deemed
proper if the petitioner is given one opportunity to show
sufficient cause that prevented it from filing appeal within
specified period. Considering the tenor of order of the Hon'ble
Supreme Court of India by virtue of the period of limitation has
been extended for a period of 90 days from 1st March, 2020 in
respect of cases which could not be filed during 15.03.2020 to
28.02.2022. Therefore, it is deemed expedient to set aside the
order dated 26th November, 2024 passed by the appellate
authority under Section 250 of the IT Act vide Annexure-4 for
taking a decision on the petition dated 14th June, 2022 afresh.
6.4. It is noticeable that Section 249 of the IT Act inter alia under
sub-section (3) confers power on the appellate authority as
follows:
"(3) The Commissioner (Appeals) may admit an appeal after
the expiration of the said period if he is satisfied that the
appellant had sufficient cause for not presenting it within
that period."
6.5. Bare reading of said provision makes it unequivocal that the
appellate authority is competent to take on record the material
and delve into merit of the petition for condonation of delay by
analyzing the evidence and if he is satisfied that the petitioner
had sufficient cause for not presenting the appeal within the
period stipulated, can exercise his "discretion" in favour of the
appellant.
6.6. As it appears from the impugned order, the appellate authority
had no occasion to consider the documents like prescription and
order dated 10th January, 2022 of the Hon'ble Supreme Court of
India rendered in the case of In Re: Cognizance for Extension of
Limitation, referred to supra. Without delving further on the
issue much, without expressing any opinion on the merits of the
appeal or the petition for condonation of delay, the order dated
26th November, 2024 passed by the appellate authority vide
Annexure-4 is, accordingly, set aside.
6.7. While doing so, it is apt to direct that the matter is remitted to
the appellate authority-Commissioner of Income Tax (Appeals),
Income Tax Department for consideration of petition dated 14th
June, 2022 for condonation of delay in filing appeal afresh by
taking into account the documents/prescriptions as furnished to
the Court by way of additional affidavit dated 9 th May, 2025
and keeping in view the order of the Hon'ble Supreme Court of
India.
6.8. Needless to say, the facts narrated above are culled out from the
pleadings available on record for the purpose of examining
contentions of the petitioner in the present case. The appellate
authority is free to examine the documents produced and/or to
be produced before him as enclosed to the additional affidavit
furnished to this Court and take a decision independently
without being influenced by any of the observations made
hereinabove.
7. In view of the above, the writ petition stands disposed of. All
the pending Interlocutory Applications, if any, shall stand
disposed of accordingly. No costs.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 02-Sep-2025 19:01:52
