TaxTMI 
TaxTMI 
2026 (2) TMI 1355
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....d his Consultant who in turn advised him to file appeal against the order passed u/s.263 of the Act. The affidavit filed by the assessee stating the above facts on oath reads as under: "I, Vineetsingh Gulabsingh Rore, aged 47 years, Son of Gulabsingh Rore, residing at Vraj Avenue, Above US Pizza, Swastik Char Rasia, Navrangpura, Ahmedabad - 380009, Gujarat, India hereby solemnly swear and affirm the following statements before the Notary Public: Initial Compliance: I I was subjected to original assessment proceedings under Section 143(3) of the Income Tax Act, 1961 ("the Act") for the Assessment Year 2017-18. The proceedings were finalized vide order dated 22nd December 2019, 1 duly complied with statutory notices issued by the Assessing Officer ("AO") in a timely and complete manner. Order under Section 263: An order under Section 263 of the Act was passed against me by the Principal Commissioner of Income Tax, Ahmedabad-1 ("PCIT") on 3rd March 2022.1 complied with notices and participated in the proceedings as required. Subsequent Order: Subsequent to the directions of the PCIT under Section 263, an order under Section 143(3) read with Section ....
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....s the cornerstone of any civilized society, and I beseech that it may not be denied to me specially when the delay has been caused by circumstances beyond my control and is sufficiently explained herein. I confirm that the above statements are accurate and true to the best of my knowledge, belief, and information, and I have not concealed any material facts. Sworn and affirmed at Ahmedabad on this 27th day of October, 2023." 3. The assessee has corroborated his explanation of being wrongly advised by his earlier Consultant by filing an affidavit of the said Consultant admitting to having not advised his client, the assessee before us, to file appeal against the order passed u/s.263 of the Act, attributing it to his limited knowledge in the aspect of the litigation relating to income tax matters. The affidavit of the Consultant of the assessee Shri Ashesh Shah reads as under: "I, Ashesh Shah, aged 36 years, residing at F 802 Titanium City Center, Anand nagar road, satellite, Ahmedabad 380015, Chartered Accountant by profession, registered under the Institute of Chartered Accountants of India, License No. 149185, do hereby solemnly swear and affirm the f....
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....ad on this 27th day of October, 2023." 4. Ld. Counsel for the assessee further stated that in identical facts and circumstances the ITAT in various decisions had condoned huge delays and in this regard, he referred to the following decisions, copies of which, are placed before us: "1. ITA, Ahmedabad in case of Ravi Dipakbhal Shah vis Pr. CIT -6 in ITA No.160/Ad/2020 2. ITAT Mumbai in case of Ashok Kumar Shivpuri Vs CIT 22 in ITA No. 631/Mum/25/14 3. ITAT Hyderabad in case of Mr. Garadi Rambabu Khammam Vs ITO, Ward-2 Khammam in ITA. No. 1796 & 1797/Hyd/ 2013 4. ITAT Pune in case of Mr. Kewal Kumar Jain Vs ACIT, Circle 4, Pune in ITA No.1385/PUN/2016 5. ITAT-Jaipur in case of Mahaveer Prasad Jain Vs PCIT 2 Jaipur in ITA. No. 02/3P/2023 6. ITAT-Chandigarh in case of Sh. Yuvraj Mahajan Vs the Income Tax Officer, Ward 3(3) in ITA No.958/Chd/2014 7. ITAT-Delhi in case of Daya Ram Mittal Vs JCIT Range-25 New Delhi in I.T.A. No. 3054/DEL/2012 8. ITAT-Delhi in case of Ramesh Mittal Panchkula Vs Commissioner of Income Tax Central, Gurgaon in ITA Nos. 1009 to 1011/Ind/2014." 5. He pointed out that the facts in the c....
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....der passed u/s.263 of the Act and also the order passed u/s.263 of the Act in appeal. He contended that the assessee should be allowed to pursue only one remedy and not both remedies available to it. Ld. Counsel for the assessee, on the other hand, countered by stating that the guiding principles laid down by the Courts for dealing with delays still remains the same and even in the decisions cited by the Ld. DR the Courts have laid emphasis on the existence of a reasonable and sufficient cause for the delay so as to condone the same. He, therefore, pleaded that the delay in the present case of 543 days be condoned. 7. We have heard the contention of both the parties and we find that it is a fit case for condoning the delay in the filing of the present appeal before us of 543 days. The explanation of the assessee, is that it was not advised by his Consultant to file appeal against the order passed u/s.263 of the Act and it was only when the consequential order was passed by the AO, making huge addition of its income that the assessee changed his Consultant who, in turn, advised to him to file appeal against the order passed u/s.263 of the Act also. The assessee has stated the abo....
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....section 143(3) was passed on 30.12.2019 after which he approached the second counsel who advised him to file appeal against the order under section 263 and in regard to which he filed an appeal on 12.2.2020 resulting delay of 284 days. 14. Above facts, relating to the chronology of events have not been controverted by the ld.DR before us. Therefore, it can be safely read from the same that the assessee promptly pursued the legal action which was advised by the second legal counsel on receipt of consequential order under section 143(3)/263 and filed appeal against the order passed by the ld.Pr.CIT under section 263. What has to be seen now is whether, this explanation of the assessee for the delay was bona fide, reasonable and did not exhibit any negligence or laxity in pursuing its appeal in appellate remedy. The facts as stated by the ld.counsel for the assessee that he was advised by the earlier counsel not to file appeal against the order passed u/s 263 of the Act has not been found to be false by the Revenue. Also it is highly plausible also for a legal consultant to have advised against filing appeal against the revisionary order under section 263 of the Act. There ca....
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....he order passed u/s 263 of the Act. Therefore noting that there is no negligence or laxity attributable to the assessee for the delay in filing appeal, and to subserve the ends of justice we find that it is a fit case for condoning the delay of 283 days in the present appeal. The impugned delay in filing the present appeal is accordingly condoned." 8. Drawing from the decision of ITAT as above, we are also of the view that the assessee had bonafide explanation to offer for the delay, giving good and sufficient cause for the same as being the wrong advice by his Consultant of not filing appeal against the order passed u/s.263 of the Act. The delay, in our view, needs to be condoned. 9. The argument of the Ld. DR that the assessee should not be allowed to pursue alternate remedy by filing appeal both against the order passed u/s.263 of the Act and also against the consequential order passed by the AO u/s.143(3) of the Act in accordance with the directions of the PCIT u/s.263 of the Act, we find is incorrect. The two remedies as pointed out by the Ld. DR are not alternate remedies. The scope and the consequence of the appeal against the order passed u/s.263 of the Act i....
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....t for revising the order of the AO. The assessee replied stating that during assessment proceedings the issue has been duly examined. Ld. PCIT, however, did not find the explanation of the assessee satisfactory noting that the withdrawals from the bank account had resulted in negative balance in the bank account and the deposits therein being in the form of loan, he contended that such withdrawals, therefore, must have been used for some purpose in the business of the assessee and not kept idle for re-deposit in the bank account during demonetization period. He noted that the AO had not called for the complete cash book nor the same had been furnished by the assessee during assessment proceedings or before him so as to verify whether the cash remained or was utilized for incurring expenses which were not recorded in the books of the assessee. He accordingly directed the AO to re-examine the issue giving specific direction in this regard at para 3.2 of his order, which is as under: "3.2 In view of the above facts as discussed, the assessment order passed u/s 143(3) of the Act dated 22.12.2019 is held to be erroneous and also prejudicial to the interest of revenue and set-as....
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....n the bank during demonetization period and in case of non-satisfactory explanation with regard to such cash deposited, he will make an addition u/s 68 of the Act and charge the tax as per the special provisions u/s 115BBE of the Act." 11. The assessee has raised several grounds of appeal before us but his primary argument before us against the order so passed u/s.263 of the act was that; i. the issue had been examined during assessment proceedings and the AO had taken plausible view making no addition; & ii. the PCIT had directed the AO to examine the source of investment in house property purchased by the assessee during the year, which issue was neither raised during revisionary proceedings and therefore, also the assessee was not confronted with the same in the revisionary proceedings. 12. With regard to his argument that the issue was examined during assessment proceedings, he drew our contention to documents filed during assessment proceedings revealing documents/letter filed at paper book page no.5 to 17 being reply filed by the assessee to the AO dated 06.11.2019 and page no.45 to 129 being copies of all bank statements, bank accounts of the assessee....