On the material that could be found, that reason on its own has not worked. A Tribunal bench upheld a refusal to condone six years where the explanation was a pending rectification, and the Delhi High Court refused 439 days on the same explanation. What has worked is different: a High Court set aside a refusal to condone four months because the first appellate authority gave no reasons for rejecting the explanation. So plead the delay properly rather than plead the rectification.
The provision. Section 249(2) gives thirty days from service of the notice of demand, and s.249(3) empowers the Commissioner (Appeals) to admit a later appeal where he is satisfied that the appellant had sufficient cause for not presenting it in time. The approach to sufficient cause is the liberal one in Collector, Land Acquisition v. Mst. Katiji, which this library holds. Nothing in s.249, and nothing in s.154, stops the two remedies running at the same time or makes one wait for the other.
What has been decided on this reason. In Siby Mining & Infracture (P) Ltd v. ITO (2023) 225 TTJ 1 (UO) (Hyd)(Trib), for assessment years 2009-10 to 2015-16, the Commissioner (Appeals) refused to condone a delay of six years where the ground was the pendency of a rectification application under s.154, and the Tribunal upheld that refusal while directing that the rectification application be disposed of. The digest carries the point in its heading: 'S. 249 : Appeal-Commissioner (Appeals)-Form of appeal and limitation-Pendency of rectification application under section 154-Delay of six years-Not condoned'. In Agnity Technologies (P) Ltd v. CIT (2018) 97 taxmann.com 515 / 258 Taxman 129 (Delhi)(HC), a delay of 439 days was not condoned, the digest recording that no satisfactory reason had been given and that a rectification application pending before the Tribunal did not justify it; the digest also records that the assessee's special leave petition was dismissed, and reports the matter alongside Spinacom India (P) Ltd v. CIT (2018) 258 Taxman 128 (SC). That was an appeal to the High Court under s.260A rather than a first appeal, so the reasoning is transferable but the provision applied was not s.249(3). Both were read on a single digest site and no second source for either could be found, which is why no case entry was written for either.
What has worked. In Reena Agarwal v. UOI (2020) 275 Taxman 596 (Gauhati)(HC) the appeal was four months late and the explanation offered was that a rectification application about interest under ss.234A, 234B and 234C had been filed with the Assessing Officer. The Commissioner (Appeals) rejected the condonation application without dealing with that explanation, and the High Court allowed the writ petition and sent the matter back for a decision on the material on record. Read together with the other two, the pattern is that the pendency of a rectification is not by itself the cause; but a refusal to condone which does not engage with the explanation is bad, and a short delay explained on its own facts is a different case from a delay of years.
How to plead it, then. Do not offer the pending rectification as the reason. Offer the reason the appeal was actually late - most often that the intimation was never seen because it went to an address nobody was watching - and give it day by day, from the date the return was filed to the date the demand was first seen on the portal, on affidavit, with the portal downloads annexed. The rectification belongs in the narrative as part of what you did once you knew, which is evidence of diligence, not as the excuse for not appealing. Say expressly that you accept the rectification did not extend the period, because a petition which implies the opposite invites the answer given in Siby Mining.
And keep the alternative alive. If the delay is not condoned, s.264 remains open, because the bar in s.264(4) operates where an appeal is pending or has been decided and not where the appeal period was allowed to lapse - this library holds Aafreen Fatima on that. So the condonation application should be drafted knowing that a refusal is not the end of the file.
This is the commonest way a processing-centre file is lost - not on the merits of the adjustment but on limitation, with a condonation petition whose only explanation is that a rectification was pending. That explanation has been rejected on the two occasions that could be found, and the petition that succeeds looks different: it explains the delay itself, on affidavit, with the portal record behind it.
A binding decision that covers my point was never considered when my order was passed. Is that a mistake apparent from the record?
My settlement application was admitted years before the Commission passed its final order — can it charge me section 234B interest for that whole period, and reopen the settled order later to add interest it forgot?
How wide are the first appellate authority's powers when it disposes of an appeal?
Is payment of admitted tax under s.249(4) a condition that must be satisfied again when the appeal goes on to the Tribunal?
An amendment adds a new levy. Does it reach back to earlier years?
Your appeal is late. How strictly will 'sufficient cause' be read?
The Commissioner dismissed my revision and the officer will not issue a demand notice so I cannot appeal. Is the revisional order beyond the reach of a writ because it is administrative?
My assessment was rectified once already. I want a second rectification, and four years have gone since the original assessment but not since the rectified one. Am I out of time?
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