TaxTMI 
TaxTMI 
2022 (3) TMI 1514
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....t. Ltd. -Assessment Year 2014-15 In the aforesaid context, it is humbly submitted that an order u/s 263 was passed in the case of assessee by Pr. Commissioner of Income Tax-2, Jaipur on 08.03.2019. Appeal against such order was supposed to have been filed within 60 days, i.e. 06.05.2019, however, the appeal got delayed by 932 days, as the appeal is being filed now on 243 for the reasons as explained below: 1. That, as soon as the impugned order passed by Id. Pr. CIT was received, the same was forwarded to the office of counsel of assessee so as to decide if appeal against such order was required to be filed. 2. That, the counsel of assessee advised that no appeal is required to be filed against impugned order and appeal would be filed against the order passed u/s 143(3) r.w.s. 263 of the Income Tax Act. 3. That, order u/s 143(3) r.w.s. 263 was passed on 02.12.2019, and when the same was discussed with another counsel, assessee was advised as to why no appealwas filed against order u/s 263. 4. However, by that time, there was countrywide lockdown and offices of counsels remained closed due to COVID 19 pandemic and again appeal co....
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....has submitted an application seeking condonation of delay and this affidavit is being submitted in confirmation to the facts narrated in the application seeking condonation of delay." 2.2 Based on the stated facts in the petition and affidavit filed by the assessee it is noted as even confirmed by the registry that this present appeal is delayed by 932 days delay and if the delay of covid period for 619 days is deducted than the delay is of 313 days. For that matter of the delay the ld. AR of the assessee submitted that the majority part of the delay is on account of covid 19 period and rest of the period delay in filling this appeal is absolutely inadvertent and has occurred due to advise of the counsel appeared in the assessment proceedings and has not advised to file an appeal against the order of the PCIT passed under section 263 of the Act. There was no malafide of deliberate delay in filling the present appeal and when the assessee came to know about the absolute right of filling an appeal against the order of the PCIT they moved this present appeal. The ld. AR of the assessee further submitted that in the assessment proceeding the other chartered accountant represented th....
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....his appeal is filed by the assessee after a delay of almost 932 days. Out of 932 days delay, 619 days on account relaxation on account of covid-19 granted by the apex court and therefore, there is delay of 313 days for which the ld. AR of the assessee submitted that they have reasonable reasons for not filing an appeal in time. 3.1 There is also no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there was sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. Section 253(5) deals the power of the tribunal and the same is reiterated here in below: Section 253 (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. 3.2 Thus, based on that provision tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a sufficient cause on the part of the ....
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....clusion the assessee was at fault, he intentionally and deliberately delayed the matter and has no bona fide or reasonable explanation for the delay in filing the proceedings and the position is quite otherwise. 3.6 In case of Collector, Land Acquisition vs MST Katiji, the Hon'ble Supreme Court has held that the expression 'Sufficient Cause' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts. It was further held by the Hon'ble Supreme Court that such liberal approach is adopted on one of the principles that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Another principle laid down by the Hon'ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the othe....
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....appeal and as held by the Hon'ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. Therefore, in exercise of powers under section 253(5) of the Act, we hereby condone the delay of 932 days in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits. 4. Now, coming to the merits of the case, the assessee has marched this appeal on the following grounds of appeal: " 1. On the facts and in the circumstances of the case and in law, Id. PCIT-2, Jaipur has grossly erred in revising the assessment completed u/s 263 of the Income Tax Act, 1961 arbitrarily. 1.1 That Id. PCIT-2, Jaipur has further erred in passing the impugned order u/s 263 of the Income Tax Act, 1961 by ignoring the doctrine of merger as impugned order was already adjudicated by the ld. CIT(A) prior to the initiation of revision proceedings, thus the impugned order deserves to be quashed and be hold as having been passed without the authority of law. ....
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....he explanation submitted by the assessee company and given his finding which is reiterated here in below:- "8. From the above facts and circumstances of the case and having regard to the material available on record, the Assessing Officer failed to consider/apply his mind to the information available on record with regard to the calculation of book profit u/s 115JB. Thus the order passed on 28-12- 2016 is without making necessary verification of the income determined under section 115JB and without examination of the claim of MAT and as such the assessment was made without application of mind on the given facts on record. This in turn has resulted in passing of an erroneous order by the Assessing Officer in the case due to non application of mind to relevant material, an incorrect assumption of facts and an incorrect application of mind to law which s prejudicial to the interest of the revenue. 9. Since, the case was converted into complete scrutiny for the purposes of verifying the correctness of return of income, the Assessing Officer was required to examine and correctly determined the book profit u/s 115JB and charge MAT tax and interest u/s 234B & 234C thereo....
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....under consideration was filed on 17.11.2014 declaring total income of Rs.1,42,40,840/-. Case of assessee was selected for scrutiny assessment, which was completed vide order dated 28.12.2016 passed u/s 143(3) of the Income Tax Act (hereinafter referred to as "the Act") at a total income of Rs. 1,69,76,200/- after making following additions: - Disallowance of part depreciation on building Rs.22,50,530/- - Long Term Capital Gain on Sale of Land Rs. 3,47,485/- - Part disallowance of depreciation on Vehicle Rs. 1,37,346/- Rs. 27,35,361/- Aggrieved of the additions made in the assessment order, assessee preferred appeal before ld. CIT(A), which proceedings were also concluded vide order dated 31.01.2018. Subsequently, ld. PCIT(adm.) initiated the proceedings u/s 263 by issue of ,show cause notice vide letter No. Pr. CIT-II/ITO/(T & J)/JPR/263- 264/2018-19/1104 dated 06.12.2018. In response to such notice, assessee furnished relevant details and Revision proceedings were concluded vide order dated 08.03.2019, whereby order passed u/s 143(3) was held as erroneous and prejudicial to the interest of the revenue and was set aside with the direction to ....
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....nothing has been heard from the office of the ld. PCIT. In this regard, at the outset it is submitted that ld.AO though had not elaborately computed book profits in Assessment Order, however had mentioned MAT income u/s 115JB in Income Tax Computation Sheet issued alongwith Assessment order, thus it is not the case that issue of MAT has not been examined at all. Moreover, basically Revision proceedings were initiated for inclusion of profit on sale of land and building under Book profits whereas this issue of quantum of profit related to land and quantum of profit related to building was already before ld. CIT(A), and no amendments whatsoever were made by ld. CIT(A) in order passed by ld.AO in this regard. It is submitted that by virtue of clause (c) of explanation to section 263(1), powers conferred vide section 263 cannot be exercised in respect of part of order that has been subject matter of adjudication by ld.CIT(A). In the instant case also, issue of profit on sale of land and building (which has been proposed to be not reduced while computing book profit) was subject to appeal and has been thus also examined by ld.CIT(A). Your honours would appreciate that ....
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.... contested by either party and it can, if need be, rewrite the order. The Explanation below section 251 of the Income-tax Act specifically empowers the appellate authority to decide any matter arising in the proceedings for assessment though it may not be raised in the appeal. Even if there is no such a provision in the statute, the decision in Shapoorji Pallonji Mistry v. CIT [1958] 34 ITR 342 (Bom.) affirmed in CIT v. Shapoorji Pallonji Mistry [1962] 44 ITR 891 (SC) that an appellate authority can deal with any matter covered by the order appealed against, irrespective of the fact whether that matter is raised in appeal or not. If it does not deal or revise any of the points within its jurisdiction, it should be assumed that the appellate authority has affirmed the findings on those points and has not thought it necessary to interfere with them. Hence, the entire order of assessment should be deemed to merge in the appellate order subject only to any other enabling statutory provision, as in the Explanation below section 251 of the Income-tax Act mentioned above. J.K. Synthetics v. Addl. CIT [1976] 105 ITR 344, (Alld) upholds this view. The ratio of the decision in Tel Utpadak Ke....
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....for the sake of convenience: Assessment Year Date Particulars Last date of filing Revised Return 2014-15 17.11.2014 Return filed u/s 139(1) declaring total income of Rs.1,42,40,840/- under normal provisions of the Act - 28.12.2016 Assessment Completed u/s 143(3) 31.01.2018 Appeal decided by ld. CIT(A) 06.12.2018 Notice issued by ld.PCIT 08.03.2019 Order passed by ld.PCIT 2015-16 25.09.2015 Return filed 31.03.2017 2016-17 12.10.2016 Return filed 31.03.2018 From perusal of above, it is apparent that even at the time of initiation of Revision proceedings by ld.PCIT, last date of revising Returns of Income for A.Y. 2015-16 as well as A.Y. 2016-17 had already expired, therefore no remedy was left with assessee. In any case, there is no loss to revenue due to reduction of profit on sale of land for computation of MAT and accordingly, it is prayed that order u/s 263 be set-aside." 9. The ld. AR of the assessee in addition the above written submission argued that the case of the assessee was for limited scrutiny and was converte....
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....revenue in fact. 10. Per contra, the ld. DR relied upon the order of the PCIT and relied upon the following decisions to support the contentions so raised by him before us:- The ld. DR in addition the above decision submitted that the ld. PCIT has passed speaking order considering the contentions of the assessee and the ld. AR of the assessee in his alternative submission accept that the assessee is liable to MAT. The ld. DR quoting the order of the PCIT in para 3.3 wherein the PCIT has observed that there is no inquiry appears to have been made, even the report u/s. 115JB in form no. 29 is not on record. It has thus not been examined by the AO. Based on these submissions the ld. DR supported the order of the PCIT on merits. 11. We have heard the rival contentions, perused the material on record and orders of the lower authorities. We have also gone through the various decisions cited by both the parties to drive home to the contentions raised by the rival parties. Apropos ground no. 3 the bench observed that the same is general in nature and therefore, it does not require any separate adjudication. The bench also observed that vide ground no.1, 1.1 and 2 the assessee has ....
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....rder of revision u/s. 263 of the Act. 11.2 The decision cited by the ld. DR are on different facts as compared the facts of the case and the ld. DR did not brought any contrary judgment as cited by the ld. AR of the assessee on the issue saying that when the appeal order received the order of the AO mergers with the order of the CIT(A) and therefore, the ld. PCIT has no power to review that order of the Commissioner of Income Tax, Appeals. 11.3 Based on these observations and considering the facts and circumstances of the case the order of the PCIT passed u/s. 263 of the Act lacks jurisdiction and thus bad in law and the same is hereby quashed. In the result, appeal of the assessee is allowed. Order pronounced in the open court on15/03/2023. ============= Document 1 S. No. Description of the case 1 [2015] 61 taxmann.com 301 (Madras) Ajmeer Sherriff & Co. v. Income-tax Officer Page No. 1-4 2 [1998] 65 ITD 263 (DELHI) Apollo Tyres Ltd.v.Assistant Commissioner of Income- 5-18 tax [2013] 37 taxmann.com 393 (Punjab & Haryana) Chopal Plywood v.Commissioner of Income-tax, Panchkula 19-20 [2014] 41 taxmann.com 88 (Allahabad) Dr. G.....