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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri B.R. Baskaran
Per B.R. Baskaran, Accountant Member
Both the appeals of the assessee are directed against the two separate orders passed by Ld CIT(A) and both relate to the assessment year 2009-10. The appeal numbered as is directed against the order passed by Ld CIT(A)-II, Thane against the assessment order passed u/s 143(3) of the Act. The other appeal numbered as ITA No.2062/Mby/2017 is directed against the order passed by Ld CIT(A)-3, Thane against the assessment order passed u/s 144 r.w.s. 263 of the Act.
Both the appeals are barred by limitation by 1591 days and 404 days respectively. The assessee has moved petitions requesting the bench to [2] Shri Dineshkumar Darshan Yadav condone the delay. Before examining the petitions, it is necessary to dwell upon the facts relating to these appeals. The original assessment u/s 143(3) of the Act was completed on 26.12.2011 by the AO, wherein he made addition of Rs.10.90 lakhs relating to bank deposits and Rs.4.50 lakhs u/s 68 of the Act. The assessee challenged the assessment order by filing appeal before Ld CIT(A), who dismissed the appeal, vide his order dated 14.09.2012.
The Ld Administrative Commissioner, however, initiated revision proceedings u/s 263 of the Act on 23-03-2014, since the AO did not examine the issue of investments made by the assessee in a house property. Pursuant to the revision order, the AO completed the assessment to the best of his judgement u/s 144 r.w.s 263 of the Act, wherein he made three types additions, viz., addition relating to investment in house property (Rs.16.66 lakhs), unexplained expenditure (Rs.13.20 lakhs) and unexplained payment (Rs.25,000/-). The assessee challenged this assessment order by filing appeal before Ld CIT(A). However, the assessee withdrew the appeal on 15.12.2015 by stating that the appeal has been erroneously filed before him instead of filing appeal before ITAT. Accordingly, the Ld CIT(A) dismissed the appeal.
Subsequently, the assessee filed appeals belatedly before ITAT challenging both the orders passed by Ld CIT(A), referred supra.
It is stated that the assessee was fully dependent upon his tax consultant and has acted as per his advice. Since the assessment order was re-opened u/s 263 of the Act, the tax consultant has advised assessee not to file appeal against the order passed by Ld CIT(A) relating to assessment order passed u/s 143(3) of the Act. Though the assessee preferred appeal
[3] Shri Dineshkumar Darshan Yadav before Ld CIT(A) against the assessment order passed u/s 143(3) r.w.s 263 of the Act, yet the assessee withdrew the appeal on the advice of tax consultant with the submission that the appeal is required to be filed before ITAT. When the assessee approached new consultant, when he got demand notices, the new tax consultant has advised him to prefer appeals against both the orders passed by Ld CIT(A). Accordingly these two appeals came to be filed belatedly before ITAT. Accordingly it was prayed that the delay may be condoned.
I shall first take up the appeal numbered as relating to assessment order passed u/s 144 r.w.s. 263 of the Act. I notice that the advice given by the earlier tax consultant to withdraw appeal filed before Ld CIT(A) against the assessment order passed u/s 143(3) r.w.s. 263 of the Act is not in accordance with the law. Since the assessee should not suffer against wrong advice of the tax consultant, I am of the view that the delay of 404 days should be condoned. Accordingly I condone the delay of 404 days in filing this appeal. Since the assessee has withdrawn the appeal filed before Ld CIT(A) on the wrong advice of the tax consultant, no fault can be found with the order of Ld CIT(A) in allowing the assessee to withdraw the appeal. Hence I am of the view that the Tribunal cannot do anything in this matter. The assessee, if so advised, may prefer fresh appeal before Ld CIT(A). Accordingly this appeal of the assessee is dismissed.
I shall now take up the appeal numbered as relating to assessment order passed u/s 143(3) of the Act. I notice that the order passed by Ld CIT(A) is dated 14.09.2012. The revision order u/s 263 of the Act was passed by Ld Administrative commissioner on 23.03.2014, i.e., after about eighteen months. As per the law, the assessee is required to file appeal before ITAT within 60 days from the date of receipt of order
[4] Shri Dineshkumar Darshan Yadav passed by Ld CIT(A). Hence the wrong advice given by the earlier tax consultant is only partially correct in this matter. However, considering the fact that the earlier tax consultant chose to withdraw the appeal before Ld CIT(A) against the assessment order passed u/s 14393) r.w.s. 263 of the Act, I am of the view that the assessee might not have been properly advised by him. However, considering the time gap between the appellate order and revision order, I am of the view that the delay may be condoned on certain terms. I also notice that the assessee has furnished explanations against the addition of Rs.10.90 lakhs and Rs.4.50 lakhs for the first time before Ld CIT(A) and the first appellate authority has rejected them without confronting the same before the AO. Accordingly, I am of the view that these two issues require fresh adjudication. Accordingly I direct the assessee to pay a cost Rs.5,000/- (Rupees Five thousand) to the credit of Income tax department as other fees within two months from the date of receipt of this order. Subject to the above said payment, the delay in filing appeal is condoned and both the matters are restored to the file of Ld CIT(A) with the direction to examine both the issues afresh after obtaining remand report from the AO.
In the result, the appeal numbered as is dismissed and the other appeal (ITA No. 2063/Mby/2017 is treated as allowed for statistical purposes.
Order pronounced on 18-07-2019