VINEETSINGH GULABSINGH RORE,AHMEDABAD vs. THE PCIT, AHMEDABAD-1, AHMEDABAD

The assessee has corroborated his explanation of being wrongly advised by his earlier Consultant by filing an affidavit of the said Consultant admitting to having not advised his client, the assessee before us, to file appeal against the order passed u/s.263 of the Act, attributing it to his limited knowledge in the aspect of the litigation relating to income tax matters. The affidavit of the Consultant of the assessee Shri Ashesh Shah reads as under:

Engagement with Mr. Vineetsingh Gulabsingh Rore: I was engaged as the authorized representative for Mr. Vineetsingh Gulabsingh Rore, hereafter referred to as the "Assessee", for his assessment proceedings under Section 143(3) of the Act for the Assessment Year 2017-18.

Order under Section 263: An order under Section 263 of the Act was issued against the Assessee on 3rd March 2022. 1 acknowledge that due to my lack of expertise in income tax litigations specifically related to Section 263, the Assessee was not adequately advised to file an appeal against this order within the prescribed period.

Limitation of Knowledge: I affirm that my primary focus has been on general income tax compliance and I was not engaged in full-time practice of income tax litigations before ITAT or other appellate forums. Hence, my guidance to the Assessee was limited to my area of expertise.

Change in Representation: I understand that the Assessee has now engaged the services of Mr. Sunil Maloo of Sunil Maloo & Co., Chartered Accountants, for filing an appeal before the ITAT against the order under Section 263 of the Act 6. Unintentional Delay: I earnestly submit that any delay in filing the appeal against the order under Section 263 by the Assessee was unintentional and was mainly due to the limitations of my professional expertise in the specific area of income tax litigations involving revision proceedings under Section 263.

Prayer for Condonation: I humbly pray to the esteemed Tribunal to consider the unintentional nature of the delay caused due to the limitations in my professional expertise and to thus condone the delay in filing the appeal by the Assessee for ensuring a just and equitable adjudication. I confirm that the above statements are accurate and true to the best of my knowledge, belief, and information, and I have not concealed any material facts. Sworn and affirmed at Ahmedabad on this 27th day of October, 2023.”

Ld. Counsel for the assessee further stated that in identical facts and circumstances the ITAT in various decisions had condoned huge delays and in this regard, he referred to the following decisions, copies of which, are placed before us:

He pointed out that the facts in the case of Ravi Dipakbhai Shah (supra) were identical to that in the present case wherein the assessee had delayed in filing appeal to the ITAT against the order passed u/s.263 of the Act, attributing the cause for the delay being wrong advice given by the Consultant, considering which, the ITAT had held reasonable cause to be attributed by the assessee for the delay and accordingly, condoned the delay in filing of appeal.

Ld. DR, however, vehemently objected to the condonation of delay and referred to the decision of Hon’ble Apex Court in the case of Union of India v. Jahangir Byramji Jeejeebhoy, Civil Appeal No. 1494 of 2019, dated 03.04.2024 and the decision of the Hon’ble High Court of Punjab & Haryana in the case of Gurpal Singh Brar vs. ITO, Mohali in of 2017 (O&M) dated 09.02.2017. Copies of both orders are placed before us. Referring to the decisions, he contended that Hon’ble Apex Court has stated that the length of delay is a relevant matter, which must be taken into consideration while considering whether the delay should be condoned or not and that it makes no difference whether the litigant is a private party or a State or Union of India when it comes to condoning the gross delay in filing appeals. He pointed out that the Hon’ble Apex Court held that if the litigant chooses to approach the court long after the lapse of the time prescribed under the relevant provisions of the law, then he cannot turn around and say that no prejudice would be caused to either side by the delay being condoned. He pointed out that the Hon’ble Apex Court reiterated the view that the rules of limitation are based on the principles of sound public policy and principles of equity and ‘Sword of Damocles’ should not be kept hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants. He further contended that in the present case the AO already passed the consequential order in view of the direction of the Ld. PCIT in his order passed u/s.263 of the Act, which is impugned before us and the assessee had preferred appeal against the said order passed by the AO. He contended that by now filing appeal against the order passed by the Ld. PCIT, the assessee was availing alternate remedy available to it pursuing both the assessment order passed as a consequence of the order passed u/s.263 of the Act and also the order passed u/s.263 of the Act in appeal. He contended that the assessee should be allowed to pursue only one remedy and not both remedies available to it. Ld. Counsel for the assessee, on the other hand, countered by stating that the guiding principles laid down by the Courts for dealing with delays still remains the same and even in the decisions cited by the Ld. DR the Courts have laid emphasis on the existence of a reasonable and sufficient cause for the delay so as to condone the same. He, therefore, pleaded that the delay in the present case of 543 days be condoned.

We have heard the contention of both the parties and we find that it is a fit case for condoning the delay in the filing of the present appeal before us of 543 days. The explanation of the assessee, is that it was not advised by his Consultant to file appeal against the order passed u/s.263 of the Act and it was only when the consequential order was passed by the AO, making huge addition of its income that the assessee changed his Consultant who, in turn, advised to him to file appeal against the order passed u/s.263 of the Act also. The assessee has stated the above facts on oath before us. The original Consultant of the assessee has corroborated the explanation of the assessee by admitting to having not advised the assessee to file appeal against the order passed u/s.263 of the Act, stating the same on oath in an affidavit filed before us. Ld. DR has not pointed out any infirmity or falsity in the explanation of the assessee. We have noted that in identical facts and circumstances the ITAT in the case of Ravi Dipakbhai Shah (supra)had held the explanation of the assessee for the delay as bonafide as reasonable and not exhibiting any negligence or laxity in pursuing the appeal. The ITAT noted that it is highly plausible for a Consultant to have advised against filing appeal against the revisionary order passed u/s.263 of the Act, since, it has no financial implication as generally issues are restored back to the AO for re-consideration. The ITAT noted that Courts in various decisions have held wrong legal advice given as constituting good reason or sufficient cause for condoning the delay in filing appeal. The relevant finding of the ITAT in this regard are contained at para 13 & 14 of its order as under:

Above facts, relating to the chronology of events have not been controverted by the ld.DR before us. Therefore, it can be safely read from the same that the assessee promptly pursued the legal action which was advised by the second legal counsel on receipt of consequential order under section 143(3)/263 and filed appeal against the order passed by the ld.Pr.CIT under section 263. What has to be seen now is whether, this explanation of the assessee for the delay was bona fide, reasonable and did not exhibit any negligence or laxity in pursuing its appeal in appellate remedy. The facts as stated by the ld.counsel for the assessee that he was advised by the earlier counsel not to file appeal against the order passed u/s 263 of the Act has not been found to be false by the Revenue. Also it is highly plausible also for a legal consultant to have advised against filing appeal against the revisionary order under section 263 of the Act. There can be two reasons for it; (i) that the legal consultant found no financial implication in the revisionary order, since all the issues had been restored back to the AO for reconsideration and he would have presumed that no appeal lie against said order and the appellate remedy lie only against the consequential assessment order passed or in his wisdom, he thought that it would be best if the appeal was filed only against an order which had direct financial implications, since there was a possibility that the assessee would have remained unaffected in consequential assessment proceedings as far as his assessed income was concerned, therefore, the consultant in his wisdom thought it best wait for consequential order and file appeal only against the same. Therefore, this explanation of the assessee that he was advised not to file appeal against the order passed under section 263 to us, appears to be a plausible explanation, and there is no doubt that in the consequent assessment, the assessee was assessed multiple times to its returned income, which forced him into action and he came to the consult another legal adviser on whose advise the present appeal was filed before us. The delay in filing of appeal therefore in these circumstances cannot be attributed to any laxity or negligence on the part of the assessee. In fact the assessee, has all along acted on the advice of legal consultant, the first one advising him not to file appeal and the second one advising him to do so. It is also very pertinent to note here that various courts have held that wrong legal advice given or mistake made by the assessee’s counsel may constitute a good reason or sufficient cause for condoning the delay in filing appeal. In other words, a cause should not be dismissed due to ill-advice given by the counsel. The following case laws support this proposition: i) Concord Ins Vs. Nirmaladevi, 118 ITR 507 (SC) ii) IAC Vs. Kedarnath, 133 ITR 746 iii) Arun Vs. Twigg, 153 ITR 131 iv) Avtar Vs. CIT, 133 ITR 338 Also there is no benefit accruing to the assessee by not filing appeal in the first instance itself but on the contrary the assessee has been inflicted with serious consequences of huge demand raised on him on account of the consequential assessment framed which there was a possibility of avoiding if appeal were filed against the order passed u/s 263 of the Act. Therefore noting that there is no negligence or laxity attributable to the assessee for the delay in filing appeal, and to subserve the ends of justice we find that it is a fit case for condoning the delay of 283 days in the present appeal. The impugned delay in filing the present appeal is accordingly condoned.”

Drawing from the decision of ITAT as above, we are also of the view that the assessee had bonafide explanation to offer for the delay, giving good and sufficient cause for the same as being the wrong advice by his Consultant of not filing appeal against the order passed u/s.263 of the Act. The delay, in our view, needs to be condoned.

The argument of the Ld. DR that the assessee should not be allowed to pursue alternate remedy by filing appeal both against the order passed u/s.263 of the Act and also against the consequential order passed by the AO u/s.143(3) of the Act in accordance with the directions of the PCIT u/s.263 of the Act, we find is incorrect. The two remedies as pointed out by the Ld. DR are not alternate remedies. The scope and the consequence of the appeal against the order passed u/s.263 of the Act is much wider than that against the order passed by the AO u/s.143(3) r.w.s. 263 of the Act. The assessee in its appeal against order passed u/s 263 of the Act can plead setting aside of the entire order passed by the Ld. PCIT u/s.263 of the Act, resulting in no locus standi remaining with the AO to pass a consequential order. While in the appeal against the consequential order passed u/s.143(3) of the Act the only scope is limited to challenging the additions made to the income on merits. The two are, therefore, not alternate remedies and this argument of the Ld. DR merits no consideration. Even otherwise, if law provides for alternate remedy the assessee is free to pursue the same. Reliance placed by the Ld. DR on the decision of Hon’ble Apex Court in the case of Union of India v. Jahangir Byramji Jeejeebhoy (supra) and the decision of the Hon’ble High Court of Punjab & Haryana in the case of Gurpal Singh Brar (supra) also is of no assistance, since, they both reiterate the guiding principles relating to condonation of delay of there being sufficient cause for the delay for taking the same. The said decisions do not lay down any blanket proposition that huge delay’s need not be condoned. In the light of the same, we condone the delay in the filing of present of 543 days finding the assessee to have adduced sufficient cause for the delay.

Taking up the appeal for adjudication, the order of the Ld. PCIT reveals that he found assessment order passed in the case of the assessee for the impugned year u/s.143(3) of the Act to be erroneous causing prejudice to the Revenue on account of AO having accepted assessee’s explanation of the cash deposited in its bank account without verifying the same from the facts on record.

The assessee has raised several grounds of appeal before us but his primary argument before us against the order so passed u/s.263 of the act was that; i. the issue had been examined during assessment proceedings and the AO had taken plausible view making no addition; & ii. the PCIT had directed the AO to examine the source of investment in house property purchased by the assessee during the year, which issue was neither raised during revisionary proceedings and therefore, also the assessee was not confronted with the same in the revisionary proceedings.

With regard to his argument that the issue was examined during assessment proceedings, he drew our contention to documents filed during assessment proceedings revealing documents/letter filed at paper book page no.5 to 17 being reply filed by the assessee to the AO dated 06.11.2019 and page no.45 to 129 being copies of all bank statements, bank accounts of the assessee filed along with the reply dated 05.12.2019 to the AO.

We have gone through the said documents and we find that during assessment proceedings the AO did ask the assessee to furnish the details of cash deposited in its bank account and explain the source thereof. The assessee in response filed details of all its bank accounts mentioning the amount of cash deposited therein during the year. It is noted from the same that primarily cash was deposited by the assessee in its Bank of Baroda account and its RBL Bank account amounting to Rs.75.45 Lakhs and Rs.84.46 Lakhs respectively. The source of the same was explained as out of business income and from withdrawal, which was re-deposited due to demonetization. The assessee did furnish copy of his bank accounts also, but, as noted by the Ld. PCIT, the assese did not furnish its cash book to the AO to justify the explanation furnished during assessment proceedings. The Ld. Counsel for the assessee was asked at Bar whether the assessee furnished its cash book during assessment proceedings to which he was unable to reply in the affirmative. In the light of the same, it is evident that during the assessment proceedings, the assessee had only furnished the details of his bank accounts and had mentioned the source of cash deposit without corroborating the same with its cash book. The furnishing of bank account alone would not suffice to corroborate the explanation of the assessee that withdrawals made from the bank account were re-deposited in its bank account. Since, as rightly pointed out by the Ld. PCIT, the withdrawals may have been subsequently utilized, therefore, we do not find any merit in the contention of the Ld. Counsel for the assessee that the issue was examined during assessment proceedings. We hold that the Ld. PCIT was right in noting that the AO had not made adequate enquiries for verifying the explanation of the assessee of the deposits being made out of its withdrawals, despite the facts revealing that the withdrawals from bank accounts were made from loans, the AO made no enquiry about the utilization of these amounts and simply accepted the assessee’s explanation of re-depositing the withdrawals which is highly improbable. Therefore, this argument of the Ld. Counsel for the assessee is rejected.

The other contention of the Ld.Counsel for the assessee that the Ld. PCIT had given direction for examining the source of investment in house property, which was not even confronted to the assessee, we find no merit in the same also. We have gone through the findings of the Ld. PCIT at para 3.2 of his order which is reproduced above and we find that the Ld. Counsel for the assessee has misunderstood the direction of the Ld. PCIT at Sub- para (f) of the said para directing the AO to verify the source of investment by the assessee in a property. The purport of the same was to direct the AO to verify whether the withdrawals made by the assessee were utilized in any way and in any manner including investment by way of on-money in an immovable property purchased by the assessee. This direction was given in the light of the explanation of the assessee that its cash withdrawals were re- deposited in the bank account. The Ld. PCIT had directed the AO to examine the utilization of its withdrawals elsewhere including that in an immovable property purchased by the assessee. That was the only purpose for the direction given by the Ld. PCIT and he had in no way directed the AO to verify the source of investment in an immovable property by the assessee. Therefore, this plea / argument of the Ld. Counsel for the assessee is also found to be without any merits and is rejected. Since, all arguments of the Ld. Counsel for the assessee challenging the order passed by the Ld. PCIT u/s.263 of the Act stand rejected and dismissed by us, the order passed by the Ld. PCIT is upheld.

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

�वभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER,