RADHESHYAM BISARAM KATRE,NAGPUR vs. THE ACIT, CENTRAL CIRCLE-2(1), NAGPUR

The order passed by U/s. 1530 rW,5 143(3) is illegal; invalid (Appeals)-4, Nagpur and bad in Iaw. The learned Commissioner %f Income Tcx (Appeals}-4 erred in 2 confirming the addititm made by the assessing Officer and #ot 01 the basis of accepiing regular books of accounts prepared the department and rejected the same and data prepared by of Rs. 54,879/ the same is unjustified, made addiliort unwarranted and excessive. #ojm XIA #os 358 I0 364/Nug/2087 Shri Radheshyam Bisrami Katre Tc [eGrmed (ommissimmer Of Ixcoxp Tcu {Appeals}-4 axtght Io) Ixcll"r' urepted the: prufit sli)lu {46 p'' aialited books Cf ac unts o; !f" (#S6SS0C, i}x'"c'/ure Dit;'!" possed (5 iw!jstified, mne'cetited rind} €tressux #1 Ussesspk is mainEGinulg reagglur books of (LC.t:{nts (LXlcl SuWp x4ere airlited U/s 4AAB of the' Income Tcx Act cd wvhich Wcre produced by the assessee during the course f ussessmeri proceeditgs; rejecting the Somhle without clry redsons and adopting profit ( 8*; %f totcl receipts 05 net profit {S per cash susten of accounting, therefore orrler passed is unjustified, LI?A'crrtted C} td excessive, The leamned Commissioner Qf Income Tar (Appeals}-4 erred I77 confinne ing the addition made by the assessing officer and not accepting regular books %f accounts, therefore order passed IS unjustified, unarranted rmd excessive: The leamed Commissioner Qf Income Trx {Appeoks)-4 erred] Tvz confirming addition made by the assessing officer; nidopling 8*, Uf total receipls as net profit as per cash system of accourtling by reiecting books 0f accounts UJ s. 145/2) and deterinined incomte (: 8% and made the addition, therefore order passed is unjustified, unwvarranted and excessive: The assessee is under bonafide impression that the department will not initicue any penalty proceedings 263 proceedings against fhe assessee) but jurisdictional commissioner initiated proceedings U/ s. 263 and set usirle the assessment and order passed U/ s 153 KW.S. 263 though the same wvas quashed by the Hon ble Income Tax Appellate Tribuncl, the department hs preferred appeal before the Fon 'ble High Court and the said is pe} lding before the Hon 'ble High Court; therefore order passed is unustified, unwarranted and excessive, The assessee is under bonafide impression that the department wvithdrawal the proceeding before Ihe Hon 'ble High Court gince the #GiC is pentding, therefore ordler passed i5 unjustified, unwarrrinited and excessive 33 The perusal of the record reveals that the learned CIT(A) passed the order on 31st January, 2017 and the appeals were filed on 4th October , 2017 This appeal is barred by 185 days of period of limitation. The a88e3see/ 'appellant has filed an apptication for condonation of the delay. 4 We have perused the application for condonation of delay and heard the learned representalives of the parties The Id AR for the assessee ) {TA !os 358 to 3364/Ng/20]7 Shut Radhrshyoni Bisram Katre argued that the ordler passed by the CIT(A)-4, Nagpur dated 31st January, 2017 125 recejved 017 1 51 February, 2017_ It Was argued thal a survey conducted on 3rd Scptember, 2007. During the survey lhe assesgee oflercd additional incume 0f?30,00,000/- Further_ 4 acarch was conducted a1 the business premises of the assessee on 27,05.2008. During the search and seizure action complete records of the as8essee Were seized: The asses56e sought pemmission for inspection of the records and prepared the return of income a8 per audited books of account A8 per law_ The a6sessee wa8 following mercantile system of accounting; Subsequent to the search action notice under Section 1534 Wa5 issued. The asses3ee furnished return of income 48 per mercantile system Qf accoun- ting: The AQ while the assessmenl order adopted 896 pf the total receipt of the passing assessee and changed the accounting system 0f the assessee The AO adopted cash system o[ accounting: To buy pcace and to avoid litigation the assessee agreed for 8% of the Bales on estimatc basis, The assessee sjected for adoption of cash syster of accounting by the AO a5 the lity of the assessee waS increased. For A.Y. 2008-09 by adopting cash emn of accounting the income of the assessee was reduced and in rest the years the income was increased, The CIT initiated proceedings under Section 263 on 28.03.2013. Against the action of the CIT the assessee filed appeal before the Tribunal vide ITA No 163/Nag/2013. The appeal of the was allowed and the order under Section 263 for A,Y. 2008-09 asse8888 was quashed, The asaesgee 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 as3es5pe waj under the bona fide impresBion that once the order under Section 263 has been quashed by the Tribunal in} ITA No_ 163/Nag/2013 the absesee filed an application before the CIT(A) for withdrawal of the appeal on 27.12.2016. On the application of the assessee the learned CIT(A) passed an order dismissing the appeal of the assessee on 315 January, 2017. TTA Nos. 1;/" fJ x/ Nag}2017 Shri Rctrllie xlu## Fisramt Kafre 5_ It Was submitted that the appeal preferred by Revenle: against the urder of the Tribunal 1as admitted by the Hon'ble: Higin Court On 16.06.2017. On admitting the appeal ol the Revenue the assessee realised thal in case the Hon'hle High Court pass order againist lhc asscssce the a3Se38c8 eill sulfer hcavy monetary loss, The a3seS5CC has wrongly withdrawn his appeal and il was 3 bona fide and mistaken advice of the counsel, In support of his submission the learned A.R. for the a98es88e relied upon the decisions of the Hon'ble Supreme Court in the case of Ramneth 8ao and Other VS. Gobardhan Sao and Others reported in AIR 2002 (8C) 1201, Stale of Haryana VS. Chandra Mani in AIR 1996 (8C) 1623 and N. Balakrishnan vs. M_ Krishnamurthy in AIR 1998 (SC) 3222. 6 On lhe other hand, the learned DR, opposed the condonation of delay. It was sbmitted by the Iearned D.R that he leave the decision o[ delay on the discrepancy of the Bench: We have considered the rival submissions of the parties and have through the order of the CIT(A}. The learned CIT(AY passed the lowing order: "5, The AO has completed the on Gashobusisedhereaftesesener8, bas adiecied assessment appellant's tumover appellant's books of accounts uf $, has rejected 14502) of the Incometax Act and determined the appellanl"s income at 8% of the total turover The Ao has adopted 0 rate of 8% on the basis of appellants offer Where Otreelant nitiself has Ggreed {or adoplioi %pet icome % &whe46jec to the condition that no penalty proceedings are initiated appellant; Consequent to passing the order by the tecagqissiSha rWS 143/3) of the Incometax Act, for A.Y.2008-09, initiated by proceedings were jurisdictional Commissioner against the u/ 5.263 of the Incometax Act and the appellant 4.0. assessment was set aside: The subsequently took up reassessment proceedings and order wf &. 1534 another rw.s 263 was passed by the A.O. for A.Y.2008-0g on 03.03.2014, 5.1 In the meantime; the appellant went before the ITAT jurisdictional Commissioner's order uf 5.263, 'ffoe btee ITAZ Sagpst Bench vide order No. ITA.161/Nagf 2013, dated 1 FTAZONadras has quashed Commissioner's order dated 28.03.2013 the Incometax Act, passed u/ s.263 of However; the department for A.Y.2008-0g hus chaltenged the order %f TTAT before jurisdictional High Court Furthers the appellant has filed an application dated 27.12.2016 expressing ITA Nos JSB t0 364/Mog/ 2Ol7 Shvri Radheshycm Bisram Ratre his desire to accept the assessment order passed by the A.O. and to withdraw pending appeals in the group where orders Were passed by the A.0. u/s,1534 rw,s.14303) of the Incometax Act, 1961, The appellant made the following request: #The assessee has filed aforesaid appeals 0n 28.01.2014 against the order of Assistant; Commissioner pf Incometax; Central Circle-2(l}, Nagpur dated 30.12.2010 for the AY.2003- 2004 to 2009-2010. Tne assessee wuants to withdraw all the aforesaid appeals. Hence this withdrawal application 5,2. Considering that the appellant has filed application for Withdrawal of appeal the grounds of appeal filed by the appellant qre hereby Dismissed, From the order of the CITQAJ we noted that the appeals of the a83es320 WCTe dismissed as the a88e88ee {iled an application for withdrawal of appeals, We have further noted that the application for withdrawal ol appealb wa5 based on the belief thal the Tribunal has quashed the Commissioners order under Section 263 dated 28.03.2013 for A.Y, 2008- 09_ The as8es3eC has realiged its mistake after admission of the appeal 61 LA inst the order of the Tribunal. Considering the fact the assessee has idrawn the appeal on 2 mistaken belief &nd realised that the axsessee suffer heavy monetary 1os8, WE find force in the submission of the learned A.R and condone the delay in filing the appeal. We are of the view that under the Income Tax Act the Revenue i[ entitked to a53e88 the real income and to recover the legitimate tax thereon: The 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. It i8 settled law that there is no estoppe} against the law. If the assessee is entitled for any relief on merit; the relief available under the law cannot be denied t0 the assessee, We, instead o[ going in the meril of the case we are of the opinivn that the matter/ appeal of the assesgee be decided on merit instead of technicalities, Considering the explanation offered by the assessee the delay in Mling 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 ld representatives of the parties and perused the order of Id CITIA); The perusal of the order of the CIT(Ajreveals that the TTA N0s 3;8 19 364/_ Nag/ 2017 Shlrt Radhestyamn Bisram Kalre learned CITTAV has not decided the appeal on merita The appeal of the assessee was dismissed 9; withdrawn Considering lhc factual matrix of the case as discussed in the proreedlings paras, restore #e deem it appropriate the appeal to the to file of the CIT(A) to decide the same On Needless to say that the learned merits. CITIA) shali grant sufficient and adequate opportunity (0 the assessee before deciding the appeal on merits. We may further order thal while hearing the appeal the application for withdrawal of appeal made by the Assessee will not come in the way of bypassing the order on merits. 9 In the result; the appeal of the asses8ee is allowed for statistical purposes [TA No. 359 to 364/Nag/ 2017 In all the appeals the a88e8sc2 has raised identical ~al, grounds of All appeals are accompanied by application for condonation of Qn similar facts 85 taken in ITA No, 365/Nag/2017. As already We have condoned the delay in that appeal, the delay in filing the other appeals i8 also condoned, 11 Considering the fact that wc have already restored the appeal in ITA No, 368/Nag/2017 to the file of the CIT(A), all the other appeals in the group are restored to the file of the CITIAI for deciding the issue on merits. 12 In the result; ITA No. 358 to 364/Nag/2017 are allowed for statistical purposes Order pronounced in the open court on 23rd Novem] ber, 2017 . - (P.K, Bansal} Vice President (Pawen Singh} Judicial Member Nagpur; Dated: 23rd November, 2017 ITA Mas 338{} 364/NOW 0]7 Shi Rctclleshyami FJisram Xotre 63 Copyto; The Appellant The Respondent The CIT(A) -4, Nagpur The Pr; CIT {Centrall, Nagpur The DR, Bench; ITAT; Nagpur GIuptd Ale {/ / SOrdbA 0uW EislarRegstrar ITAT; NegpirBenctt ~ldew 319 1J.*1t ta:"W"eh:' 7}75n2* Tribunal 87t 0 Nzgpl Eerict 4 nl.P_