2020 (8) TMI 801

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....ecord in the order of the Tribunal. The relevant contents of the miscellaneous application filed by the assessee are reproduced as under:- 1. The captioned appeal filed against the order dated 23.03.2018 passed u/s. 263 of the Act by the Pr. QT-9, Mumbai was dismissed being barred by limitation vide order dated 29.11.2019. Hearing in the above matter took place on 25.06.2019 when the detailed arguments were advanced by both the parties on the issue of condonation of delay, as well as on merits. Thereafter, the matter was fixed for clarification on 04.10.2019. Since the aforesaid order contains mistakes apparent from record, which require rectification so as to avoid miscarriage of justice, we beg to file this application u/s. 254(2....

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....sons adduced by the assessee, the assessee itself has admitted the fact that it was under the bona fide belief that the PCIT has set aside the assessment order passed u/s. 143(3) with a direction to redo the assessment afresh and hence, it was under the belief that it may get favourable result from the AO. When the AO was determined to make additions on the issues discussed by the PCIT in its 263 proceedings then, the assessee has decided to file appeal with explanation that the counsel, who appeared before the PCIT has given incorrect advise. We find that the assessee has taken a conscious decision not to file appeal, on the pretext of getting favourable results from the AO in consequential assessment proceedings. ....

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....tant who appeared before PCIT. (d) The advice of the Chartered Accountant, who appeared before the PCIT, was incorrect because the jurisdiction of the PCIT to pass the revisional order could be challenged only before the Hon'ble Tribunal. The incorrectness of the said advice was made known to the assessee only during the conference with the counsel. Even the Chartered Accountant who gave the incorrect advice had categorically admitted in his affidavit that he advised so due to his inexperience in profession, and such advice was found to be inapt. This is further supported by the affidavit of the director of the assessee-company. Both the affidavits have gone uncontroverted, and there is no counter affidavit on the basi....

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....e Ld.PCIT, but went on to decide the issue of condonation of delay by repeatedly holding that the assessee has filed appeal before the Tribunal against order of the Ld.PCIT passed u/s 263 of the I.T.Act, 1961 by an afterthought, when the Ld. AO was determined the make the additions on the issues taken up by the Commissioner in 263 proceedings. The Ld. AR, further submitted that, but fact remains that the assesee has never pleaded that since, the ld. AO was determined to make additions, but the appeal has been filed, on the basis of fresh advise taken from a different counsel, who had given suggestion for filing appeal against the order of the commissioner passed u/s 263 of the I.T.Act, 1961. The said findings of the Tribunal constitutes a m....