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Income Tax Appellate Tribunal, MUMBAI BENCH “C ”, MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI M. BALAGANESHSmt. Padma Vipin Sahgal,
PER VIKAS AWASTHY, JM:
This appeal by the assessee is directed against the order of Principal Commissioner of Income Tax, Mumbai-19 [ in short ‘the PCIT’] dated 08/03/2021 passed u/s. 263 of the Income Tax Act, 1961 [ in short “the Act”] for the Assessment Year 2010-11.
This appeal is time barred by 91 days. The assessee has filed an application seeking condonation of delay in filing of the appeal. The assessee is a senior citizen having 80 years of age and is a Non-resident. The assessee is a citizen of US. The delay in filing of the appeal has been attributed to the fragile health of the assessee/ appellant and Covid 19 Pandamic. After examining the contents of the application we are satisfied that the delay in filing of the appeal is not deliberate. The delay is caused for the reasons stated in the application which appears to be bonafide. Taking into consideration entirety of facts, the delay in filing of appeal is condoned and the appeal is admitted for hearing on merits.
Shri Snehal Shah appearing on behalf of the assessee submits that the PCIT vide impugned order has revised the assessment order dated 26/12/2017 passed u/s. 144 r.w.s. 147 of the Act for the assessment year 2010-11. The Tribunal vide order dated 19/09/2022 in MA No.123/Mum/2022 in for assessment year 2010-11 while adjudicating additional ground raised in the appeal challenging validity of reopening of assessment has quashed the assessment order. Once the order sought to be revised has been quashed, the subsequent proceedings arising therefrom are vitiated.
Per contra, Shri Jayant Jhaveri representing the Department vehemently defended the impugned order. The ld. Departmental Representative submits that the Assessing Officer while passing the impugned order has erred in not making addition with respect to Rent received by the assessee Rs.3,00,000/-, Interest other than interest on securities Rs.9734/- and Other Sums Rs.3,44,401/-. The assessment order suffers from lack of enquiry, hence, the same is erroneous and in so far as prejudicial to the interest of Revenue.
Both sides heard, orders of authorities below examined. The assessment order dated 26/12/2017 for assessment year 2010-11 was passed u/s. 144 r.w.s. 147 of the Act. The assessee assailed the said assessment order in appeal before CIT(A). The CIT(A) vide order dated 06/06/2019 dismissed the appeal of assessee. The assessee filed appeal before the Tribunal against the order of CIT(A) in ITA No.6097Mum/2019. The assessee raised additional ground of appeal challenging validity of reopening of assessment u/s. 147 of the Act. However, the additional ground of appeal raised remained to be adjudicated while deciding the appeal of assessee. Thereafter, the assessee filed M.A.No.123/Mum/2022 seeking rectification in the order of Tribunal dated 17/01/2022 vide which appeal of the Act assessee was decided. The Tribunal (SMC Bench) allowed the Miscellaneous Application by the assessee vide order dated 19/09/2022 and vide same order the Bench decided additional ground raised in the appeal. The Tribunal held that the reasons recorded by the Assessing Officer for reopening the assessment were not sufficient for reopening and hence, quashed the reassessment. For the sake of completeness relevant extract of the Tribunal order dated 19/09/2022 in Miscellaneous Application is reproduced herein below:
“6. In view of the above discussions, as also bearing in mind the entirety of the case, I am of the considered view that the reasons recorded by the Assessing Officer, as set out earlier, were not sufficient reasons for reopening the assessment proceedings. I, therefore, quash the reassessment proceedings, and allow the first additional ground of appeal. As the reassessment itself is quashed, all other issues on the merits of the additions, in the impugned assessment proceedings, are rendered academic and infructuous. The appeal, therefore, must be allowed.”
6. Since, the Tribunal quashed the assessment order the subsequent proceedings arising therefrom are vitiated. Consequently, the revision of the said assessment order is also unsustainable. In light of the facts discussed above, the impugned order is quashed and the appeal of assessee is allowed.
In the result, appeal by assessee is allowed.
Order pronounced in the open court on Friday the 06th day of January, 2023.