M/S RR CONSTRUCTIONS,VIJAYAWADA vs. THE DCIT, VIJAYAWADA

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ITA 153/VIZ/2015Status: DisposedITAT Visakhapatnam28 February 2018AY 2009-105 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal rejected the assessee's petition for condonation of delay. It held that the assessee, being an auditable case and represented by a Chartered Accountant, could not claim bonafide ignorance regarding appeal procedures.

What were the facts?

The assessee filed an appeal before the ITAT with a delay of 334 days against an order passed by the CIT under Section 263. The assessee claimed ignorance of the appeal procedure as the reason for the delay.

What were the issues?

Whether the delay in filing the appeal against the CIT's order under Section 263 can be condoned on the grounds of ignorance of procedure, especially when the assessee is professionally represented.

Which sections of the Income-tax Act were involved?

Section 263

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM

Before: SHRI V. DURGA RAO & SHRI D.S. SUNDER SINGH

For Appellant: Shri G.V.N. Hari, AR
For Respondent: Shri P.S. Murthy, DR
Hearing: 20.02.2018

PER D.S. SUNDER SINGH, Accountant Member:

This appeal filed by the assessee is directed against order of the Commissioner of Income Tax {CIT}, Vijayawada dated 26.3.2014 for the assessment year 2009-10. 2. All the grounds of appeal are related to the order of the CIT

passed u/s 263 of the Act. There was a delay of 334 days in filing the 1 M/s. R.R. Constructions, Vijayawada appeal of the assessee. The assessee submitted petition for condonation of delay as under:

1.

Assessment in the case of the petitioner for the A.Y 2009-10 was completed u/s 143(3) on 29.11.2011 wherein the income of the petitioner was determined at Rs 41,35,830/- as against the returned income of Rs 34,39,519/-. The above order was set aside by the learned Commissioner of Income Tax, Vijayawada u/s 263 of the Act vide order dt 26.03.2014. The petitioner received the order on 02.04.2014. Appeal against this order ought to have been filed by the petitioner on or before 31-05- 2014. However, the appeal could be filed only on 01.05.2015 and therefore there was a delay of 334 days in filing the appeal.

2.

In the above mentioned order, the learned Commissioner of Income Tax directed that the assessment order would he modified after giving an opportunity of being heard. No demand was raised vide this order. Further, there was no instruction anywhere along with the order u/s 263 that an appeal lies against this order before the Hon'ble ITAT.

3.

The assessment was completed u/s 143(3) r.w.s. 263 of the Act on 10th March, 2015, and the income assessed at Rs 1,03,60,676/- was much higher than the income assessed in the original 143(3) order dt 29.11.2011. The assessing officer issued a demand notice, wherein it was mentioned that if the appellant intends to appeal against the assessment it may prefer an appeal to the Commissioner of Income Tax(Appea!s), Vijayawada within 30 days of the receipt of demand notice.

4.

As per the instruction in the demand notice, the appellant started preparations for filing appeal against the order u/s 143(3) r.w.s. 263 of the Act and in this regard consulted an experienced tax consultant Sri G.V N. Han at Visakhapatnam on the advice of its local consultant. During the course of such discussion on 2nd April, 2015, the appellant was advised that the proper course of action would be to prefer an appeal before the Hon'ble Income Tax Appellate Tribunal, Visakhapatnam against the order dt. 26th March, 2014 of the Commissioner of Income Tax, Vijayawada u/s 263 of the Act. As a matter of abundant precaution, the appellant was advised to file an appeal even against the assessment order dt 10th March, 2015 passed u/s 143(3) r.w.s. 263 of the Act.

5.

Without further loss of time, the appellant took necessary steps and could file the appeal before the Hon'ble Income Tax Appellate Tribunal, Visakhapatnam on 1st May, 2015 after a delay 2 M/s. R.R. Constructions, Vijayawada of 334 days and an appeal against the order passed u/s 143(3) r.w.s. 263 of the Act before the learned Commissioner of Income Tax (Appeals), Vijayawada was filed simultaneously.

3.

During the appeal hearing, the Ld. A.R. argued that the assessee

was not aware of the fact that the assessee required to file the appeal

against the order passed u/s 263 of the Income Tax Act, 1961

(hereinafter called as 'the Act'). The assessee was under the impression

that the only consequential order passed by the AO giving effect to the revisional order u/s 263 of the Act is an appealable order but not the order u/s 263. Only when the assessee had received the consequential

order, he had approached the tax consultant who has advised him to file

an appeal against order passed u/s 263 of the Act with a prayer for condonation of delay. The Ld. A.R. argued that the assessee was under the bonafide belief with regard to the appeal procedure for filing appeal

against order passed u/s 263 of the Act. Since it was a bonafide

mistake, the Ld. A.R. requested to condone the delay.

4.

On the other hand, the Ld. D.R. argued that the explanation

offered by the assessee is general in nature which does not require

consideration of the ITAT. The Ld. D.R. further submitted that there

was a long delay in filing appeal and the assessee failed to offer proper

explanation for delay in filing appeal day wise. Therefore, argued that there is no reason for condoning the delay. 3 M/s. R.R. Constructions, Vijayawada

5.

We have heard both the parties, perused the materials available

on record and gone through the orders of the authorities below. There

was a delay of 334 days in filing appeal by the assessee. The reason

assigned by the assessee for delay in filing the appeal was ignorance

with regard to filing of appeal. The assessee’s case is auditable case u/s 44AB of the Act and the assessee’s case was represented by Chartered

Accountant before the CIT and during the assessment proceedings also,

the assessee’s A.R. had appeared before the A.O. Therefore, it is evident

from the assessment order that the assessee is supported by the assistance of Chartered Accountants and pleading ignorance with regard

to the filing of appeal against the order passed u/s 263 of the Act

appears to be not bonafide. Similarly, the explanation offered by the assessee appears to be general in nature and we do not find any reason

to condone the delay and the petition for condonation of delay is rejected and the appeal is dismissed.

6.

In the result, the appeal filed by the assessee is dismissed.

The above order was pronounced in the open court on 28th Feb’18. (वी. दुगा"राव) ( ड.एस. . . . सु"दर "संह) (V. DURGA RAO) (D.S. SUNDER SINGH) "या"यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER

4 M/s. R.R. Constructions, Vijayawada

#वशाखापटणम /Visakhapatnam: 'दनांक /Dated : 28.02.2018 VG/SPS

आदेश क" ""त)ल#प अ*े#षत/Copy of the order forwarded to:-

1.

अपीलाथ" / The Appellant – M/s. R.R. Constructions, Plot No.63, Road No.4, Kanakadurga Officers Colony, Ring Road, Vijayawada

2.

""याथ" / The Respondent – The DCIT, Circle-2(1), Vijayawada 3. आयकर आयु+त / The CIT, Vijayawada 4. आयकर आयु+त (अपील) / The CIT (A), Vijayawada 5. #वभागीय ""त"न.ध, आय कर अपील"य अ.धकरण, #वशाखापटणम / DR, ITAT, Visakhapatnam 6. गाड" फ़ाईल / Guard file आदेशानुसार / BY ORDER ////

Sr. Private Secretary ITAT, VISAKHAPATNAM

Sl. Description Date Initials No.

1.

Date of dictation by the Author 21.02.2018 Sr.PS

2.

Draft placed before the Dictating Member 22.02.2018 Sr.PS

3.

Draft placed before the Second Member Sr. PS

4.

Draft approved by the Second Member Sr. PS

5.

Date of approved order comes to the Sr. PS Sr. PS

6.

Date of pronouncement of order Sr. PS

7.

Date of file sent to the Bench Clerk Sr. PS

8.

Date on which file goes to the Head Clerk Hd. Clk

9.

Date of dispatch of order Sr. PS

5

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