A luxury litigant assessee cannot be given a second innings to make good its case – ITAT

Assessee cannot be given a second innings to make good its case – ITAT declines to remand the case second time

In a recent judgment, ITAT Panji has held that a luxury litigant assessee cannot be given a second innings to make good its case and declined to remand matters second time for the benefit of assessee seeking it to fill-up gaps.

ABCAUS Case Law Citation:
4956 (2025) (12) abcaus.in ITAT

In the instant case, the assessee had challenged the order passed by the CIT(A) National Faceless Appeal Centre in passing ex-parte orders dismissing its appeal.

The appellant assessee was a public limited company was engaged in the business of mining and export of iron ore besides running LPG Gas agency. The return of the assessee was summarily processed u/s 143(1) of the Act. Subsequently vide notice u/s 143(2) of the Act the return of the assessee was subjected to scrutiny and consequential assessment u/s 143(3) of the Act was completed after making few additions.

The Tribunal observed that the appellant remained absent from the appellate proceedings before NFAC which culminated the proceedings ex-parte on merits on the basis facts narrated by the appellant & material available on record.

With respect to non-prosecution of first appeals and delay in filing appeal before ITAT, the assessee filed affidavit of an ex-employee who deposed to have assisting the appellant as its consultant. However, the appellant submitted revised notarised affidavits of its director submitting that appellant was unable to find an alternate professional and also that it was lack of co-ordination and miscommunication between various counsels that resulted in non-prosecution of impugned proceedings and the belated filing of appeals before the ITAT.

The Revenue strongly opposed the appeal and contended that the appellant was trying to buy home a relief reclusively on the basis of revised affidavits where deponents had modified their version of facts, amended the reasoning and changed the colour of explanation.

The Tribunal observed that there is no unfettered right conferred under the statute to assessee to claim remand where ex-parte order is passed. Inversely, the remand of file/case to tax authorities by the Tribunal is neither automatic nor inevitable in all cases where assessee entered no appearance before tax authorities.

The Tribunal opined that remand is quid pro quo to twin conditions viz; (i) material necessary for assessment/adjudication was incomplete before tax authorities and (ii) assessee, undeliberately for sufficient cause prevented from prosecuting appeals.

The Tribunal observed that NFAC had issued several notices. In response to first four hearings/notices, the appellant sought adjournments for various reasons and were granted. For fifth notice the appellant communicated of its consideration to settle dispute under ‘Vivad Se Vishwas Scheme. However, until passing final order of the Act by NFAC there was hardly any action found taken.

The Tribunal noted that record showed no evidence about engagement of a new counsel (CA) for representing appellant in any proceedings. Therefore, the appellant’s claim that lack of co-ordination and miscommunication or misknowing between various

Counsel was contray to the records.

The Tribunal further observed that a cursory look prima-facie revealed that, the disallowances/additions made by the AO were supported of definite/solid findings arrived after considering the material adduced and explanation tendered by the appellant. Further, there was nothing on record to suggests that either findings recorded or manner adopted by the NFAC was not free from any error. Also, it was not the case that, tax authorities had given less than reasonable opportunities to the appellant. On the contrary they accorded more than plentiful & judicious hearings in both these cases.

The Tribunal noted that similar facts and circumstances came for consideration before the Hon’ble High Court of Allahabad wherein their lordships laid down a ratio that, when there is no material on record to suggests that, consideration of which could dismantle the inference already drawn by the tax authorities, the Tribunal is unequivocally right in rejecting request for remand made by the revenue.

The Tribunal further noted that the issue of remand by Tribunal in a case where facts have reached their finality and tax authorities below gave concrete findings & decided the disallowance/addition came before Hon’ble Jurisdictional High Court wherein it was held that where all facts & cogent material had been produced before tax authorities, after full enquiry & examination into such facts and evidences, had given a definite finding on the question in issue, and there is nothing on record to suggest any further evidence to dismantle the of tax authorities, the Tribunal’s order of remand was held to be invalid.

The Tribunal observed that it is settled principle of law that the assessee cannot be given a second innings to make good its case and this view had been concurred by Co-ordinate benches.

The Tribunal, following judicial discipline opined that there were no reasons to interfere with the impugned orders as they have rightly dealt with the issues under appeal. Further the case is unfit for remanding back to the file of the NFAC once again, for the reason that it would amount to granting second innings to the luxury litigant assessee.

Accordingly, the Tribunal rejected the request for remand on condoning the delay in filing appeals. 

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