SHRI ISHWARBHAI V PRAJAPATI,VADODARA vs. THE PR. CIT, VADODARA-3, VADODARA

At the outset, the ld.counsel for the assessee informed that against 263-order, the AO has given effect and passed order under section 143(3) read with section 263 of the Act by order dated 2.12.2019 that was the subject matter of appeal pending before the CIT(A), Vadodara, and the assessee has opted for Vivad Se Vishwas Scheme and filed form no.1 and 2 and also paid taxes thereon and intimation of payment in form no.4 also obtained. Assessee has filed copies of form no.1 and 2 and also form no.3 and 4 to substantiate his above submissions.

That on perusing the order of Ld. CIT-3, Baroda dated 8-3- 2019 in respect of order of Assessing Officer dated 19-12-2016,1 genuinely believed and that the proceedings initiated by the CIT u/s.263 and order passed referred above is Barred by limitation of Time of two years and that nothing further was required to be done and hence I did not do anything further action and filed the papers.

That however in September 2019 I received notice from ITO Cir 3(1) dated 18/9/2019 u/s. 142(1) r.w.s. 263 I rushed to my newly entrusted Chartered Accountant fully surprised and astonished as to why this notice from ITO when the matter was a "Closed Chapter".

That at the juncture and point of time my new Chartered Accountant after verifying the whole file gave his opinion that the proceeding were not terminated and order of Ld. CIT u/s. 263 was a "Live Legal Instrument" and that the ITO, Cir 3(1) has rightly issued the Notice u/s. 142(1) r.w.s 263 dated 18/9/2019 ask that as per provisions of Law action should be very urgently taken by filing Appeal to Hon. Income Tax Appellate Tribunal, Ahmedabad^ challenging the order of Ld. CIT passed u/s.263 of the Act which is dated 8/2/2019 and which was received by me on 12-3-2019.

That I had genuinely and bonafidely believed that since two years from Original Order of ITO u/s. 143(3) the date of order of Ld. Comm. Of Income-tax passed u/s.263 and nothing further had happened from the Income Tax Department I had considered the same as the "closed chapter", I had not taken any further advise or action.

That I was not negligent or careless but genuine belief about provisions of Income Tax Law and had no mala fide or any bad desire to ignore provision of law and it was ignorance of technical part of the

After going through the application for condonation of delay, we find that one of the main reasons attributed for the delay in filing the appeal before the Tribunal is that the assessee was under misconception of the fact that the proceeding before the lower authorities was ‘closed chapter’. However, when the assessee received notice from the AO in the month of September, 2019, assessee rushed to his Chartered Accountant for verification and advice. He advised the assessee that the proceedings before the lower the Revenue authorities were not closed, and therefore, necessary action for filing appeal before the ITAT should be taken.

However, such explanation of the assessee cannot be accepted in the absence of supporting affidavit by the concerned Chartered Accountant in this behalf, because the assessee has made specific pleadings in the application that the present appeal came to be filed before the Tribunal, on his advice. Therefore, we are unable to accept the explanation of the assessee ex facie, without there being any supporting affidavit from the concerned Chartered Accountant mentioned by the assessee in his affidavit. Accordingly, we reject delay condonation application filed by the assessee, and treat the appeal of the assessee as unadmitted.

In the result, the appeal of the assessee is dismissed as unadmitted.