MR. VIVEK OMPRAKASH ABROL,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 22(1), MUMBAI

The present appeal has been filed by the assessee challenging the impugned order 26.10.2023, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (‘Ld. CIT(A)’) for the assessment year 2016-17.

There is a delay in filing of the appeal by the assessee. After perusing the petition for condonation filed by the assessee, we are convinced that the assessee was prevented by ‘sufficient cause’ from filing the appeals in time. Hence, the 2 Mr. Vivek Omprakash Abrol, Mumbai delay is condoned and the appeal is admitted for hearing on merits.

At the very outset, the Ld. AR submitted that initially order of assessment was passed by the AO on 27.12.2018, thereby making additions u/s 56(2)(viib) of the Act and the appeal filed against the said order was also rejected by the CIT(A).

The assessee has now brought on record subsequent events by virtue of rising modified grounds to the effect that subsequent to passing of the order of assessment, assessee had filed rectification application. It was submitted that order passed by the AO on the application of rectification filed u/s 154 of the Act came to the notice of the assessee recently and thus in this way orders passed u/s 154 of the Act gets substitute for the orders passed u/s 143(3) of the Act and in this way additions made while passing order of assessment u/s 143(3) of the Act cannot be sustained.

After hearing both the parties and evaluating the factual position, we find that order of assessment passed u/s 143(3) of the Act has been substituted by subsequent order by the AO passed u/s 154 of the Act and the same has already been complied with by the assessee by depositing required taxes.

Since the order passed u/s 143(3) of the Act stands substitutes and the present appeal is outcome of upholding he earlier order passed u/s 143(3) of the Act, which is no more in existence, therefore in these circumstances the present appeal becomes infructuous. However, since the assessee has made factual submissions that he had already complied with and deposited taxes on the sustained additions while passing order u/s 154 of the Act. Therefore in our view for this limited aspect only to verify the above factual situation, matter is restored back to the file of AO and in case after verification by the AO above facts are found correct in that eventuality the present appeal stands dismissed as infructuous.

Therefore, considering the above factual and legal position the Bench feels that the ends of justice would be met only if the matter is restored back to the file of the A.O to decide the matter afresh in terms stated above. However, the assessee shall not seek any adjournment on frivolous grounds and remain cooperative during the course of proceedings and the AO shall provide opportunity of hearing to both the parties. Hence, appeal of the assessee is thus allowed for statistical purposes.

Before parting, we make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the 4 Mr. Vivek Omprakash Abrol, Mumbai merits of the dispute, which shall be adjudicated by the AO independently in accordance with law.

In the result, the appeal filed by the assessee is allowed for statistical purposes.