RAMLAL BISRAM KATRE,NAGPUR vs. ACIT CENTRAL CIRCLE-2(1), NAGPUR

The perusal of the record reveals that the learned CIT(A) passed the order on 31s January, 2017 and the appeals were filed on 4th October; 2017 This appeal is barred by 185 days of period of limitation The absessee/appellant has filed an application for condonation of the delay. 4 We have perused the application for condonation of delay and heard the ld representatives of the partieg. The Id AR for the a3ses8ce argued {TA Nos 3 5 to 371/#og2017 Shri Ramlti} Bisram Katre that the order passed by the CITIA)-4, Nagpur dated 31* Jaunary, 2017 wag received on 1s Februaty, 2017. lt was argued that & survey conducted on 3u] September, 2007 . During (he survey the assessee offered additional income of €70,00,000/ Furthcr, a search was conducted at the business premises 0l the asses3ee Qn 27.05.2008. During the search and seizure action complete records of the assessee Wete seized The assessee sought permission foT inspection of the records and prepared the return of income 15 per audited books of account 4s pet Iaw The a35e8see wab [ollowing mercantile system of accounting: Subsequent to the search action notice under Section 1534 wa8 issued The asgessee furnished return of income 16 per mercantile system of accounting: The AO while passing the abse58ment order adopted 89/ of the total receipt of the a5c88et and changed the accounting system of the a3scasce The AO adopted cash system of accounting; To buy peace and to avoid litigat tion the a83e5seC agreed for 8% of the zales on estimate basig. The assessee objected for adoption Qf cash system of accounting by the AQ 4s the liability of the asse86pe was increased: For A.Y. 2008-09 by adopting cash system of ccoun ting the income of the assessee was reduced and in rest of the years income was increased. The CIT initiated proceedings under Section # on 28.03.2013. Against the action of the CIT the assessee filed appeal fore the Tribunal vide ITA NO_ 161/Nag/2013. The appeal ol the as5es5ee was allowed and the order under Section 263 for A.Y 2008-0g ws quashed. The assessee was under the bonafide belief that the revenue would not challenge the order of Tribunal in High Court; The Revenue filed appeal before the Nagpur Bench of the Hon'ble Bombay High Court: The as5e8see Tas under the bona fide impression that once the order under Bection 263 has been quashed by the Tribunal in ITA No, 161/Neg/2013 the asse83ce filed an application before the CITIA) for withdrawal of the appeal on 27.12.2016. On the application of the assessce the learned CITIA) passed an order dismissing the appeal of the assessee on 31st Jenuary, 2017. L6 0 ITA Nus 365to 371/Nag/ 2017 Shri Ramial Fisrurn Ratre 5_ It was submitted that the appeal preferred by Revenue against the order of the Tribunal Was admitted by the Hon'ble High Court On 16.06.2017. On admitting the appeal of tht Revenue the &ssessee realised that in cabe the Hon'ble High Court pass order against the asse8see the assc83ee will suffer heavy monetary loss_ The asse856e has wrongly withdrawn his appeal and it was 1 bona fide and mistaken advice of the counsel. In support of his submission the learned A.R for the a8be8s20 relied upon the decisions of the Hon'ble Supreme Court in the case of Ramnath Sap and Other YS. Gobardhan 8ao and Others Teported in AIR 2002 (SC) 1201_ State of Haryana vs_ Chandra Mani in AIR 1996 (SC) 1623 and N. Balakrishnan vs. M. Krishnamurthy in AIR 1998 (SC) 3222. 6 On the other hand; the learned DR, opposed the condonation of delay. It was submitted by the learned D.R: that he leave the decision of delay on the discrepancy of the Bench: We have considered the Fival submissions 0[ the parties and have #one through the order of the CIT(A) . The learned CIT(A) passed the following order:

Tne AO has completed the @ssessment by adopting appellant'$ tumover on cash basis Thereafter the A.Q. has rejected appellant's books Qf accounts uf 5, 145/2) of the Incometaxr Act and determined the appellant's income at 8% of the total tumover. The A.O hos adopted a rate of 8% on the basis of appellant's offer where the appellant himself has agreed for adoption of net income of 8% subject to the condition that no penalty proceedings are initiated against the appellant Consequent to passing the order by the A,O. W/s.1534 r w,8.14303) of the Incometax Act, for A.Y.2008-09, proceedings were initiated by jurisdictional Comtnissioner against the appellant u/ 8.263 0f the Incometax Act and the assessment Was set aside The AO. subsequently took up reassessment proceedt ings and another order u} s, 153A rw,s 263 was passed bJ the A.O. for A.Y.2008-09 on 03.03.2014. 5. 1. In the meantime, the appellant went before the ITAT against jurisdictional Commissioner'5 order u/s.263. Hon'ble ITAT; Nagpur Bench vide order No_ ITA. 161/ Nag/ 2013, dated 17.7.2015 has quashed Commissioner's order dated 28.03.2013 passed u/ 5.263 of the Incometax Act However; the department for AK?008-09 has challenged the order of ITAT before jurisdictional High Court Further, the appellant has filed an application duted 27.12.2016 expressing 5 {TA Nos_ 365f0 37]/ Nag/?017 Shri Ramlal Bisrtim Katre 48 his desire to accept the assessment order pussed by the A.O. and to withdraw pending appeals in the group tuhere orders Wete passed by the 4.0, I/ s.1534 rWs_ 143{31 pf the Incomtetax Act, 1961. The oppellant made the following request: #The ussessee has filed aforesaid appeals Qn 28.01,2014 against the order of Assistant; Commissioner %f Incometax; Central Circle-2(l) Nagpur dated 30.12.2010 for the AY.2003- 2004 to 2009-2010, Tle assessee Lants to withdraw all the aforesaid appeals Hence this withdrawal application: 5. 2. Considering thal the appellant has filed application for withdrawal 0f appeal the grounds of appeal filed by the appellant are hereby Dismissed From the order of the CITIA) we noted that the appeals of the assessee Were dismissed &5 the asgessee liled an application Ior withdrawal of appeals We have further noted that the application for withdrawal of appeals was based on the beliel that the Tribunal has quashed the Commissioner's order Under Section 263 dated 28.03.2013 for AY. 2008-09_ The asseasee has realised its mistake aiter admission of the appeal against the order o the Tribunal. Considering the lact the assessee has withdrawn the appeal 0n a mistaken belief and realised that the assessee will suffer heavy monetary loss, we find force in the submission o the learned A_R and condone the delay in fling Appel E appeal We &re of the view that under the Income Tax Act the Revenue if itled to asses8 the real income and to recover the legitiriate tax thereon: 3 6n44 € assessee under the mistaken belief withdrew his appeals There is no 'adjudication of the issue involve in the appeal at the stage of first appellate stage. Instead o[ going in the merit of the case we are of the opinion that the matter/ appeal of the assessee be decided on merit instead ol technicalities. Considering the explanation offered by the as8es828 the delay in iling the present appeal is condoned. In the result; the delay of 185 days in filing the present appeals is condoned, 8 We have heard the Id representatives of the parties and perused the order of Id CIT(A): The perusal of the order of the CIT(AJreveals that the learned CITTA} has not decided the appeal on merits, The appeal of the asse388e Was dismisged as withdrawn: Considering the factual matrix of the case a8 discussed in the proceedings paras, we deem it appropriate to ITA #js 303 t0 371/@ag/ZO17 S" Rawa} Risran Katre 52 Testore the appcal to the file ol the CITIAI t0 decide the same On merits. Ncedless to say that lhe learned CITIA} shall grant suflicient and adequate opporlunity to the assessee beforc dcciding the appeal on merits We may further order that while hearing the appeal the application for withdrawal of appeal made by the assessee will not cone in the way of bypassing the ordler On merits_ 9 In the result; the appeal of the a89e89ee is allowed for statistical purposes ITA No. 366 to 371/Nag/ 2017 10, In al the appeals the as3essee has raibed identical grounds of appeal. All appeals are accompanied by application for condonation of delay on Bimilar facts a8 taken in ITA No, 365/Nag/2017 , As we have already condoned the delay in that appeal, the delay in filing the other appeals is also condoned_ Considering the iact that we have already restored the appeal in ITA 365 Nag/2017 to the file of the CIT(A), all the other appeals in the @roup &re restored to the file of the CITTA) for deciding the issue On merits. 12, In the result; ITA No. 365 to 37 1/ Nag/ 2017 are allowed for statistical purposes. Order pronounced in the open court on 22nr1 November; 2017 . (P.K. Bansal) Vice President (Pawan Singh) Judicial Member Nagpur, Dated: 22nd November, 2017 Copy tg: 1 The Appellant 4. The Pr: CIT (Central} Nagpur 2 The Respondent 5, The DR, Bench; ITAT; Nagpur 3 The CITIA} -4, Nagpur ~[ducLLd Hlc Bi Ordet _ 1/ / Gi ITAT; Ncelpa UEEE n.p #r? Income Tax Appcllat? Tribunal ATTT 41a / Negpur Bancm