2019 (2) TMI 53

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....st the order u/s 143(3) r.w.s. 263 instead of filing separate appeal against the order u/s 263. The tax consultant did not advise the assessee to go on appeal against the order u/s 263. Therefore, requested to condone the delay and admit the appeal. 3. On the other hand, the Ld.DR argued that ignorance of law is inexcusable and there is no reasonable cause for condoning the delay. 4. We have heard both the parties, perused the material placed on record and observe that the reasons explained by the assessee for condoning of delay is neither convincing nor satisfactory. Therefore, we are unable to condone the delay and the appeal filed by the assessee is dismissed in limine. I.T.A No.324/Viz/2016 5. This is an appeal filed by the assessee against the order of the CIT(A) in Appeal No.158/14-15 dated 21.04.2016 against the consequential order passed by the AO u/s 143(3) r.w.s. 263 of the Act dated 17.09.2014. In this case, the assessment was originally completed u/s 143(3) r.w.s. 147 on 05.09.2011 on total income of Rs. 58,06,150/- against the returned income of Rs. 2,59,460/-. Subsequently, the CIT has taken up the case for revision u/s 263 and found that the assessee has sold 5.2....

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....ing that the CIT has given a clear direction to withdraw the exemption claimed by the assessee u/s 54B and held that having not filed the appeal before the ITAT it goes to say that the direction / finding given by CIT u/s 263 is acceptable for the assessee, accordingly dismissed the appeal of the assessee. For the sake of clarity and convenience, we extract the relevant part of the order of the Ld.CIT(A) which reads as under : "From the above order of the CIT it is clear that the CIT was not satisfied about the proper verification / examination of the issues by the AO, The CIT instead of directing the AO to conduct enquiry or verify the issues, he himself has arrived at conclusion and directed the AO to withdraw the deduction u/s 54B "which was erroneously allowed by the AO" as it was prejudicial to the interest of Revenue. So from the CIT's order it is clear that there is no other option left to the AO but to withdraw the deduction claimed by the assessee ujs.54B. In addition, what was done by the AO was simply fortifying with various case laws, the finding given by the CIT. If there is any grievance to the assessee he should have filed appeal against the order of the CI....

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.... We have heard both the parties and perused the material placed on record. In this case, the assessee claimed exemption u/s 54B to the extent of Rs. 1,46,91,679/- and the AO has disallowed the sum of Rs. 55,46,685/- in the original assessment made u/s 143(3) r.w.s. 147 of the Act dated 05.09.2011. The CIT has taken up the case for revision and in the revision order in para No.5, the CIT has given a specific direction to the AO to withdraw the exemption claimed by the assessee and in para No.10 and 11, the CIT has directed the AO to pass the consequential order after giving opportunity of being heard to the assessee. For the sake of clarity and convenience, we extract relevant part of the order of the CIT(A) in para No.7(v) and para No.10 and 11 which reads as under : Sub-Para (v). As the conditions are not satisfied the AO wrongly allowed the claim of the assessee for deduction u/s548 of the IT Act Therefore, the AO is directed to withdraw the claim of the assessee while giving effect to this order" "Para 10. ......... Since the AO did not verify these issues / did not examine the issues properly as indicated above at the time of completing the assessment u/s 143(3) r.w.s 147 o....

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....sment as per law in the interest of justice. Similar issue has come up before this Tribunal in the case of K.Venkata Raju Engineers and Contractors in I.T.A No.92/Viz/2017 dated 23.05.2018 and the ITAT took the view in favour of the assessee and directed the CIT(A) to adjudicate the issues on merits. For the sake of clarity and convenience we extract relevant part of the order of this Tribunal which reads as under : 5. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. We have gone through the Ld. CIT's order passed u/s 263 of the Act. The relevant part of the Ld. CIT's order in para 4.4. reads as under: "The A.O. is directed to add the depreciation [which he wrongly allowed] at Rs. 78,58,461/- to the total income determined by him at Rs. 4,19,95,050/- in his order u/s 143(3) of the Act dated 3.12.2012 and re-determine the total income in accordance with law & established procedure and after affording a reasonable opportunity of being heard to the assessee." 6. Similarly, concluding paragraph of the Ld. CIT(A)'s order in para 8.1 reads as under": "If we apply the above tests to the facts and circum....