TaxTMI 
TaxTMI 
2025 (6) TMI 61
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.... and dissatisfied by the said order, we beg to prefer the Appeal before the Income Tax Appellate Tribunal ("ITAT"). The Firm was formed in November 2012 to act as a promoter builder for residential projects, township projects and commercial projects and other Real estate services. However, the Appellant has never commenced any project under the name of the Firm. The Appellant has received the Assessment order framed under Section 147 r.w.s. 144 of the Income Tax Act, 1961 ("the Act") with DIN- ITBA/AST/S/147/2022-23/1051462955(1) dated March 28, 2023 which was served on the Assessee on March 30, 2023 wherein the Addition of Rs. 3,12,09,030/- was made and demand was raised of Rs. 5,18,44,211/-. The Appellant has entered into the Joint Development Agreement on December 27, 2017. However, due some disputes the said project is not yet executed. The Appellant has only paid advance for conducting the Joint Development Agreement which was paid through Capital Introduction of Partners. Aggrieved and dissatisfied by the addition made vide the order framed under section 147 r.w.s. 144 of the Act, the Appellant has filed an Appeal before the Commis....
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....e Act, assessee is in appeal before this Tribunal and therefore such delay should not be condoned. 4. We have heard both the sides and gone through the averments made in the condonation application. We notice that the assessee which is a partnership firm filed the appeal before the ld.CIT(A) against the addition made by ld. Assessing Officer but subsequent to filing of appeal the assessee thought to opt for the window available u/s. 264 of the Act but to file the revision application u/s. 264 of the Act assessee had to withdraw the appeal filed before ld.CIT(A). Assessee has duly withdrew the appeal but then failed to succeed in the revision application filed u/s. 264 of the Act. Assessee was left with the only option to file a Writ before the Hon'ble Jurisdictional High Court against the order u/s. 264 of the Act. However, assessee planned to file the instant appeal against the order of ld.CIT(A) dismissing the assessee's appeal as withdrawn before this Tribunal. Delay of 268 days was only on account of time spent by the assessee in the proceedings carried out u/s. 264 of the Act. The facts discussed above demonstrate that it is not a case where the delay has arisen due to the ....
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....d dismissed the appeal as withdrawn. Since the assessee had itself requested for withdrawal of the appeal, ld.CIT(A) was not required to deal with the merits of the case. 8. Thereafter, assessee filed an application before ld.PCIT u/s. 264 of the Act on 08.02.2024 for revision of the assessment order passed u/s. 147 r.w.s.144 of the Act. In the order u/s. 264 of the Act dated 29.01.2025 the facts are narrated in the body of the order itself that that the assessee previously filed the appeal before ld.CIT(A) but the same was allowed to be withdrawn vide CIT(A)'s order dated 24.04.2024 and thereafter the revision petition is admitted for consideration. However, even though the assessee made detailed submissions before ld.PCIT but failed to get any relief and the revision application u/s. 264 of the Act filed by the assessee was rejected. 9. Now once the assessee has lost in the application filed u/s. 264 of the Act the only option left with the assessee was to file a Writ before the Hon'ble Jurisdictional High Court because the order u/s. 264 is not appealable before this Tribunal in terms of provisions of section 253 of the Act. Assessee only took a alternate remedy to again m....
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.... for withdrawal of the appeal and give way to the assessee to file an application u/s. 264 of the Act. Ld.CIT(A) was right in dismissing the appeal accepting the request of the assessee for withdrawal of the appeal. Therefore, there is no merit in the grounds of appeal raised by the assessee. Under similar set of facts and circumstances, Coordinate Bench, Kolkata in the case of The Cricket Association of Bengal Vs. DCIT - ITA Nos. 275 to 277/Kol/2023, order dated 21.08.2023 has held as under : "9. We have heard rival contentions and perused the material placed before us. We observe that the assessee has been denied exemption u/s 11 of the Act for AYs 2013-14, 2014-15 and 2018- 19 and aggrieved with the said action of the ld. AO, grounds of appeal challenging the validity of the assessment proceedings as well as the additions made, were raised before the ld. CIT(A). During the course of pendency of the appeal before the ld. CIT(A), the assessee suo-moto requested to withdraw the appeal because it wanted to opt for the window of Section 264 of the Act and since the same was getting time barred, on assessee's request the ld. CIT(A) dismissed the appeal is as withdrawn. ....
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....d the assessee's appeal in limine without dealing with the merits of the case and since this is also not the fact of the instant case before us, these two decisions are also not applicable as the facts are distinguishable. 11. Before proceeding ahead we would like to go through the provisions of Section 251 of the Act, which read as follows:- "Powers of the ^63[***] ^64[Joint Commissioner (Appeals) or the]^65[Commissioner (Appeals)]. ^66 251. (1) In disposing of an appeal, the ^63[***]*^65[Commissioner (Appeals)] shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or ^67annul the assessment ^68[***]; ^69[(aa) in an appeal against the order of assessment in respect of which the proceeding before the Settlement Commission abates under section 245HA, he may, after taking into consideration all the material and other information produced by the assessee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul....
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....g the application of the assessee opting for an alternative remedy and the issues raised before him will again be the subject matter of adjudication before the ld. CIT(E). 14. We further notice that in the order u/s 264 of the Act, ld. CIT(E) has referred to the judgement of the Hon'ble Jurisdictional High Court in the case of Vikas Nagelia vs. CIT reported in [2022] 145 taxmann.com 317 (Cal.), wherein the Hon'ble Court held as under:- "10. With regard to the averments that no instruction was given by the appellant to withdraw the appeal to the earlier consultant etc., are of self-serving statement of the appellant of which we cannot take any cognizance. Nevertheless, we are convinced that the conduct of the appellant cannot be stated to be so bad to hold that he had slept over his rights. The appellant had been prosecuting the matter before a wrong forum. In any event, the appellant should not be left remediless and should not be non-suited even to avail the revisional remedy, more particularly when the appellant chose not to avail a statutory appeal before the first appellate authority against the assessment. Therefore, the only remedy available to the a....