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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI R.S. SYAL
This appeal by the assessee arises out of the order passed by the CIT(A)-2, Pune on 26-11-2018 in relation to the assessment year 2008-09.
It is seen that the assessee filed the appeal before the ld. CIT(A) belatedly by more than three years. Such a delay was not condoned and the appeal was eventually dismissed in limine. The assessee is aggrieved by dismissal of the appeal.
I have heard the rival submissions and gone through the relevant material on record. It is noted from page 6 of the impugned order that the assessment order was passed in this case on 24-12-2010 which was served on the assessee on 29- 12-2020. On 11-04-2011, the assessee filed revision petition u/s. 264 of the Income-tax Act, 1961 (hereinafter also called `the Act’) before the ld. CIT. No action was taken by the ld. CIT in this regard. The assessee filed reminder before the ld. CIT on 14-07-2014, which has followed by another reminder on 22-08-2014. Hearing was fixed by the ld. CIT which took place on 16-11-2015 but no order was passed. In such circumstances, the assessee realised to explore the option of filing appeal before the ld. CIT(A) against the assessment order, which led to the delay.
In this regard, it is pertinent to note that section 264(3) of the Act provides a time limit for making application with the CIT for revision within one year from the date on which the order is communicated to the assessee. The assessment order in this case was communicated to the assessee on 29-12-2020 and the assessee filed revision petition u/s.264 on 11-04-2011.
Thus, it is palpable that the assessee’s revision petition was filed within the stipulated time. Section 264(6) provides time limit for passing of the order by the ld. CIT as one year from the end of the financial year in which such an application is made by the assessee. The application was made by the assessee on 11-04-2011. Ex consequenti, the cut-off date for passing of order by the ld. CIT u/s 264 of the Act was 31.3.2013, being a period of one year from the end of the financial year in which the application was filed. It has been noted on page 6 of the impugned order that the ld. CIT was still continuing with the hearing on 16.11.2015, which is obviously a period of more than 4 years from the date of filing of application and beyond the cut-off date. The ld. AR stated at the Bar that the ld.CIT has still not passed any order u/s.264.
An assessee is entitled to either opt for revision u/s.264 of the Act or go in through the appellate procedure by filing appeal before the ld. CIT(A). Both the remedies cannot be simultaneously availed. Here is a case in which the assessee chose to avail the remedy of filing revision petition u/s. 264 of the Act and let go the appellate recourse. When the time limit for passing of the order u/s.264 expired and no order was passed by the ld. CIT, the assessee was left with no option but to go in for an appeal before the ld. CIT(A). Inaction on the part of ld. CIT in passing the order u/s.264 became a raison d’etre for the late filing of appeal by the assessee before the ld. CIT(A). Such a delay in my considered opinion constitutes a reasonable cause for the late presentation of the appeal before the ld. first appellate authority. I, therefore, condone the delay in such late filing of the appeal before the ld. CIT(A) and send the matter back to his file for a fresh disposal of the appeal on merits as per law after allowing reasonable opportunity of hearing to the assessee.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the Open Court on 07th February, 2020.
(R.S.SYAL) उपा�य� उपा�य�/ VICE PRESIDENT उपा�य� उपा�य� पुणे Pune; �दनांक Dated : 07th February, 2020 सतीश