TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 636
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....t has exhausted its right to file an appeal. 2. On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax - (Appeals) erred in not condoning the delay in filing the appeal under Section 246A of the Income of the Income-tax Act, 1961. 3. On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax - (Appeals) has erred in not adjudicating the Appellant's appeal on merits." 3. The relevant facts in brief are that for the Assessment Year 2013- 2024 assessment was framed on the Assessee vide Assessment Order, dated 30/10/2015 passed under Section 143(3) of the Act. The Assessing Officer assessed the income of the Assessee at INR. 43,15,350/- after making addition following additions (a) deemed dividend under section 2(22)(e) of INR. 55,00,000/-, (b) Account of mismatch of 26AS details of INR. 20,28,653/-, and (c) disallowance under Section 40A(3) of INR. 48,784/-. Being aggrieved, the Assessee preferred appeal before the CIT(A) challenging the aforesaid addition of INR. 20,28,653/- only. The appeal preferred by the Assessee was disposed off by the Learned CIT(A) vide order, dated 08/09/2017. Meanwhi....
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....g for disposal. Further, it may also be mentioned here that the assessee may avail the normal channel of appeal by filing an appeal against the assessment order of the Assessing Officer before the Commissioner of income-tax (Appeals) along with an application for condonation of delay in filing the appeal. Further, it is also stated here that assessee's application u/s. 154 of the IT Act on similar issue is pending for disposal before the Assessing Officer for AY 2013-14 The application filed by the assessee u/s. 2014 of the IT Act is beyond the lime limit prescribed us. 204(3) of the IT Act, 1961. The assessee has submitted that condonation of delay in filing application u/s. 264 of the IT Act, was due to dichotomy in the law on the taxability of deemed dividend. The said submission of the assessee is not found satisfactory as under the provisions of IT Act, the addition u/s. 2(22)(e) of the IT Act has to be made in the hands of registered beneficial shareholder. which fact was well aware by the assessee. Therefore, the submission of the assessee for delay in filing the application u/s. 264 of the IT Act is not found a sufficient cause for delay in fling the Application, in vie....
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....r the Assessee submitted that the Learned CIT(A) should have entertained the second appeal after condoning delay in filing the appeal. The Learned Authorized Representative for the Assessee also placed reliance upon the decision of the Co-ordinate Bench of the Tribunal in the case of The Income Tax Officer Ward 1(2)/The Deputy Commissioner of Income Tax (OSD) Range - 1, Ahmedabad Vs. M/s. Ankush Finstock Limited [ITA No.1989/Ahd/2003 and ITA No.2688/Ahd/2005 for Assessment Year 1996-1997] wherein second appeal preferred by the assessee was entertained. 7. Per contra the Learned Departmental Representative submitting that the scheme of the Act does not provide for filing two separate appeals for the same Assessment Order and therefore, no infirmity could be found in the order passed by the CIT(A) dismissing the second appeal preferred by the Assessee. It was further submitted that the PCIT had rejected the very same reason now being given by the Assessee for seeking condonation of delay in filing the present appeal. The Assessee had, admittedly, not challenged the order passed by the Learned PCIT under Section 264 of the Act. In view of the aforesaid it was submitted that the Learn....
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....ncome of INR. 55,00,000/- in the hands of the Assessee by way of Assessment Order, dated 30/10/2015. The aforesaid appeal was dismissed by the CIT(A) by way of order, dated 28/03/2025, impugned by way of present appeal. 11. On perusal of the impugned order, we find that the Ld. CIT(A) has concluded as under: "Decision and observations: 4. I have perused the grounds of appeal, statement of facts, submissions and the facts appearing from the order u/s. 143(3) of the L.T. Act for the Asstt. Year: 2013-14. The Appellant has preferred this appeal second time u/s. 246A as his revision petition u/s. 264 was rejected. * The ground that has been raised in this appeal on deemed dividend has not been contested by the appellant in his previous appeal (1st occassion) filled u/s. 246A on 02.12.2015. xx xx * * None of the above noted judgments support the claim, that CIT (A) can admit an appeal for the second time against an assessment order that had already been appealed before, and decided on merit by CIT (App), and for which a revision petition u/s. 264 was subsequently filed on new ground on deemed dividend was disposed of by PCIT by rejecting the same. * * The case laws ci....
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....r the second time which is not maintainable as per law. * * PCIT found the delay inadmissible yet suggested a course of action that contradicts his own reasoning for rejection of petition u/s. 264. The same analogy for not condoning the delay equally applies in the present appeal. * Further, the PCIT's suggestion to file an appeal with an application for condonation of delay was advisory in nature and is not binding upon a CIT(App). * As per the provision of law an assessee being aggrieved with an order can prefer an appeal within 30 days from service of assessement order. Which it did, by filling an appeal and where the ground raised in the present appeal (2nd time) was not contested. The addition made by the AO on account of deemed dividend was accepted by the appellant and for that no ground was raised on the appeal preferred u/s. 246A by the assessee for the first time. * * No assessee can file appeal repeatedly u/s. 246A, after it has exhausted its right to file an appeal. * Once an appeal has been disposed of by CIT(App), an assessee is not eligible to file an appeal, for the second time with new set of ground, before CIT(App). Filling of appeal multiple t....