TaxTMI 
TaxTMI 
2022 (10) TMI 163
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....and considered the petition filed by the assessee for condonation of delay, we are of the considered view that reasons given by assessee for not filing the appeal within the time allowed under the Act, comes under reasonable cause as provided under the Act, for condonation of delay and hence, delay in filing of above appeal is condoned and appeal filed by the assessee is admitted for adjudication. 3. The assessee has, more or less, raised common grounds of appeal for all the assessment years. Therefore, for the sake of brevity, grounds of appeal filed for the AY 2003-04, are re-produced as under: 1. The CIT(A) is erred in not admitting the additional grounds submitted and it is prayed for giving direction to CIT(A) to admit the additional grounds and pass orders on merits. 2. The appellant reserves the right to adduce any additional or alternate grounds at the time of hearing. 3. In the circumstances it is prayed to restore the matter to the file of CIT(A) to admit the additional grounds and pass order on merits and render justice. 4. The brief facts extracted from ITA No.165/Chny/2021 for the AY 2003-04 are that the assessee is engaged in the business of retail trading of ....
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.... the Act, and consequent additions made thereon in absence of incriminating material found as a result of search. The Ld.CIT(A) after considering relevant submissions of the assessee and also by following the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT reported in [1998] 229 ITR 383 (SC), rejected the additional ground filed by the assessee and relevant findings of the Ld.CIT(A) are as under: 6. I have considered the of the case of the appellant. It is that the appellant filed this present appeal on 06.01.2014in Form No.35 and the appellant had, not raised these additional, grounds specifically. It is further seen that the appellant had not any of these grounds during the two rounds of appeal proceedings before the First Appellate Authority while seeking frequent adjournments. After a lapse of nearly seven years, the appellant has raised these issues. The appellant has not offered any explanation as to why it was not raised/advanced earlier during the pendency of appeal proceedings. 7. The appellant had filed his return of income u/s.139 on 01.01.2003 admitting income of Rs.2,12,427/-. Pursuant to the notice u/s 153C, the appellan....
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....ecessary verification. The appellant, now seeks additional benefits that include income offered by him represented by unexplained opening balance in the assessment proceedings u/s.143(3) r.w.s.153C for which the assessment was completed on 30.11.2010. 10. In the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC), the Hon'ble Apex Court while considering the powers of the Appellate Commissioner as well as the Tribunal to permit additional grounds observed as under: "In the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688, this court, while dealing with the powers of the Appellate Assistant Commissioner, observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in s....
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....hat section are for the benefit of revenue Taking into account the entire factual matrix of the case, and after considering that the twin tests laid down by the Hon'ble Supreme Court are not satisfied, I am of the view that the appellant has not offered any credible explanation that its omission to raise the additional grounds earlier was not willful or unreasonable. Therefore, I do not find any valid or appropriate reason to admit these additional grounds of appeal. Accordingly, the additional grounds of appeal relating to seeking additional benefits/ reliefs are untenable and therefore are not admitted. 6. The Ld.AR for the assessee submitted that the Ld.CIT(A) erred in not admitting the additional grounds filed by the assessee challenging validity of assessment order passed by the AO u/s.143(3) r.w.s.153C of the Act, in pursuant to search action conducted u/s.132 of the Act, without appreciating the fact that the legal ground taken by the assessee challenging validity of assessment proceedings, is purely a legal ground which can be taken any time of the proceedings, including proceedings before the First Appellate Authority. In this regard, the Ld.Counsel for the assessee h....
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....e AO and has not preferred any appeal before the First Appellate Authority. Therefore, in our considered view, the assessment proceedings in pursuant to search action u/s.132 of the Act, become final and reached finality. Further, the case has been subjected to 263 proceedings by the PCIT. The PCIT has taken up 263 proceedings on certain issues and set aside the assessment order passed by the AO u/s.143(3) r.w.s.153C of the Act, for the AYs 2003-04 to 2007-08 with a direction to AO to re-do the assessment on the issue questioned in the 263 proceedings. We do not know, whether the assessee has challenged 263 order passed by the PCIT or not. The AO has passed consequential assessment order u/s.143(3) r.w.s.263 of the Act, for all assessment years and has made additions to the issues questioned by the PCIT in 263 proceedings. The assessee has challenged the order passed by the AO u/s.143(3) r.w.s.263 of the Act, before the First Appellate Authority and challenged various additions made by the AO and not challenged legality of assessment order passed by the AO. The Ld.CIT(A) dismissed the appeal filed by the assessee ex-parte for non-appearance. The assessee carried the matter in furth....