TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 27
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....her submitted that the said person upon wrong understanding of the provisions of the Act as advised by the Counsel that ld. AO would pass the fresh assessment u/s 143(3) of the Act under the direction from ld. Pr. CIT would be appealable and that the order passed u/s 263 of the Act by ld. Pr. CIT is not appealable. Ld. A/R stated that the order u/s 143(3) r.w.s. 263 of the Act dated 25.03.2023 was passed in pursuance to the directions given by ld. Pr. CIT and thereafter, having consulted Mr. Sushil Kumar Pransukha on 13.04.2023 the assessee was advised to file the appeal against the assessment order dated 25.03.2023 and also against the order of ld. Pr. CIT dated 26.03.2022. Ld. A/R also submitted that accordingly the appeal was filed on 20.04.2023. Ld. A/R submitted that the assessee is not benefitted in any manner by filing the appeal late by 353 days and therefore, the assessee cannot be penalized for the wrong advice given to the assessee by his counsel. Ld. A/R submitted that the substantial justice must prevail over technicalities of the matter and the assessee should not be denied justice for technical reason that the appeal was not filed on time. Finally, the ld. AR prayed ....
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.... preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 5. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under: "Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer caus....
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....ning the delay, then such reasons are to be construed with a justice oriented approach. 7. In the light of above, if we examine the facts of the present case, then it would reveal that basically the appeal has been filed after 353 days of the ld. CIT's order. We have perused the affidavit of the assessee and find that the delay is because of wrong professional advice to the assessee. Moreover, making the appeal time-barred has not been used by the assessee as a tactics to avoid the litigation with the Revenue because such strategy would not give any benefit to the assessee in this type of litigation. Therefore, we condone the delay and proceed to decide the appeal on merit. 8. Facts in brief are that the assessee filed return of income on 29.09.2012 declaring total income of Rs. 97,245/-. The return of the assessee was processed u/s 143(1) of the Act on 18.06.2013. Thereafter, case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act. Finally, the assessment was framed u/s 147 r.w.s. 144 of the Act vide order dated 29.09.2021. It is pertinent to state that case of the assessee was reopened on the ground that share price of M/s. Banas Finance Limite....
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....he order passed u/s 143(1) of the Act dated 18.06.2013. Ld. A/R therefore, prayed that the revisionary jurisdiction exercised by ld. AO is hopelessly barred by limitation by relying on the following decisions: (i) CIT -vs.- Alagendran Finance Limited (2007) 293 ITR 1 (SC); (ii) CIT -vs.- ICICI Bank Limited (2012) 343 ITR 74 (Bom.). 10. The Ld. D.R. on the other hand relied heavily on the order of LD. PCIT by submitting that the assessee is not put to any loss by the exercise of jurisdiction as the assessee would be given sufficient time and enough opportunity to present its case, therefore the appeal of the assessee may kindly be dismissed. 11. We have heard the rival contentions and perused the materials on records. We note that initially the assessment was framed u/s 143(1) of the Act vide order dated 18.06.2013. Thereafter the case of the assessee was re-opened by the AO after recording the reasons to believe that the M/s. Banas Finance Limited rose from Rs. 9.40 on 27.01.2011 to Rs. 562/- on 01.02.2012 and Rs. 99.50 on 28.05.2012 to Rs. 682/- on 29.10.2013 and thereafter, fell back to Rs. 13.30 on 22.12.2015. Ld. AO recorded in the reasons that the financials of the compa....
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....from the date of order of reassessment, where the item/issue in respect of which order is revised under section 263 of the Act by the ld. PCIT is not the subject matter of reassessment proceedings. The facts before the Hon'ble Apex Court were that, the ld. PCIT had sought to revise the part of the order of assessment, which related the lease equalization fund. The reassessment proceeding was initiated and culminated under section 143(3) read with section 147 of the Act in which the issue of lease equalization fund was not the subject matter and the Hon'ble Court has, therefore, held that doctrine of merger did not apply in the case of this nature and the period of limitation commences from the date of original assessment and not from the date of reassessment since the latter had not anything to do to lease equalization fund and this was not a case where subject matter of assessment and subject matter of re-assessment were same. The Hon'ble Apex Court while passing the order has relied on the decision of Coordinate Bench in the case of CIT -vs.- Arbuda Mills (1998) 231 ITR 50 (SC). Similar ratio as laid down by the Hon'ble Bombay High Court in the case of CIT -vs,- ICICI Bank Limite....