TaxTMI 
TaxTMI 
2007 (5) TMI 297
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order of CIT passed under section 264 was an order on merits as against the fact that the application under section 264 was not admitted on the ground of limitation. (3) The learned CIT(A) erred in not condoning the delay in filing the appeal even though the appellant was prevented by a sufficient cause from filing appeal within the prescribed time. (4) The learned CIT(A) erred in not deciding the appeal on merits." 3. The facts of the case, in brief, are as follows. The assessee was a partnership firm having three partners and was engaged in the business of construction/development of immovable properties. A search was conducted at the business premises of the assessee under section 132 of the Act on 25-6-1998. In response to the notice under section 158BC issued on 9-11-1998, the assessee declared undisclosed income of Rs. 97,70,000 for the block period ending 25-6-1998, in the return filed in Form No. 2B. In the assessment order passed under section 158BC(c) of the Act on 30-6-2000 the total undisclosed income was assessed at Rs. 4,34,64,022 as under: ------------------------------------------------------------ Particulars &n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was no convenient for the representative to attend. Once again vide this office letter dated 16-10-2000 hearing was fixed on 30-1-2001 and once again identical letter was filed seeking adjournment on the ground that it was not convenient for the representative to attend. The above mentioned facts prove that the assessee is not interested in getting the petition decided. Further it is seen that an appeal has been filed before the Commissioner of Income-tax (Appeals)-II, Pune on 31-7-2000 vide Appeal No. 193 and therefore, the petition under section 264 does not lie 2. In view of the facts mentioned above, the assessee's petition is rejected." 5. While deciding the appeal the CIT(A) noticed that the assessee had not paid full taxes due on the undisclosed income declared in the return, filed in response to the notice under section 158BC. He, therefore, held, vide his order dated 5-2-2002, that the appeal filed by the assessee could not be admitted in view of the provisions of section 249(4)(a). The observations made by the CIT(A) in paragraphs 3 and 4 of his order are as under: "3. Mr. V.L. Jain, C.R. and the Authorised Representative of the appellant, who appeared on 5-2-2002 in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....losed income in Garage & extra work 52,19,875 extra work Total 3,36,94,022 ------------------------------------------------------------ It is seen that the above additions were made as per the seized documents as noted in the body of the assessment order. The assessee's plea that the assessment is done on estimate, suspicion and conjecture, is not tenable in view of the fact that the Assessing Officer has based the assessment on the relevant seized documents." 7. It appears that, subsequently, the assessee paid the taxes on the undisclosed income declared in the return filed in Form No. 2B and thereafter filed a fresh appeal before the CIT(A) on 9-2-2004 along with a request for the condonation of delay. In other words the assessee complied with the requirement of the provisions of section 249(4)(a) of the Act before filing this appeal for second time before the CIT(A). This appea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l was not maintainable in view of section 249(4)(a), and the matter ended there. - that the order of the Assessing Officer had merged with the order of the CIT under section 264 dated 25-3-2003. - that the assessee had declared undisclosed income of Rs. 97,70,000 but, preferred not to pay the taxes thereon for more than four years. - that the order passed by the CIT under section 264 could be challenged only through a writ before the High Court. 11. We have considered the rival submissions in the light of material on record and the precedents cited. When an assessee is aggrieved by an assessment order passed by the Assessing Officer he has two options - either to file an appeal before the CIT(A) under section 246A or to file a revision petition before the CIT under section 264 of the Act. 12. The Commissioner is empowered under section 264 of the Act to call for the records of any proceeding under the Act, either on his own motion or on an application made by the assessee, and to pass such order thereon not being an order prejudicial to the assessee. However the sub-section (4) of section 264 places a ban on the Commissioner to revise an order in certain situations. It reads a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 249(2) and (3) of 1961 Act] and rejecting the appeal as time-barred was an order passed under section 31 [section 251 of the 1961 Act] and an appeal lay from that order to the Tribunal and it made no difference whether the order of dismissal was made before or after the appeal was admitted. 18. In the case of CIT v. Kalipada Ghose [1987] 167 ITR 173, the Orissa High Court held that an order of the Appellate Assistant Commissioner dismissing an appeal for non-compliance with section 249(4) of the Act came within the ambit of section 250 and was appealable before the Tribunal under section 253 and therefore the Tribunal, committed no illegality in entertaining the appeal and in condoning the delay and remitting the case to the Appellate Assistant Commissioner for disposal on merits. 19. In view of the above position in law a revision petition under section 264 did not lie before the CIT at the stage when the appeal had been dismissed by the CIT(A) on 5-2-2002 on the ground that the assessee had not complied with the provisions of section 249(4)(a). Therefore, the second petition filed by the assessee before the CIT under section 264 on 28-2-2002 was merely an infructuous exerci....