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2014 (11) TMI 190 - AT - Income TaxCondonation of delay – delay of 542 days – Held that:- The assessee has been diligently pursuing remedies against the order of the revenue authorities - only when they did not find any success before the CIT(A), the instructing Counsel contacted Dr. Rakesh Gupta who specialized in arguing the matters before the High Court and the Supreme Court and when the case was discussed in the conference, Dr. Rakesh Gupta brought to the notice that a mistake occurred in not filing any appeal against out the order of CIT U/s.263 - the asssese has explained the delay as it was under a bonafide belief that the remedy lies in filing an appeal against the order of the AO passed u/s 143 r.w.s.263 - It is a case of pursuing the remedy in a wrong forum - It was a case of the assessee under a mistaken advise did not file the appeal against order passed u/s 263 by the CIT - the assesee has shown a sufficient cause and reason to explain the whole of the delay covered by the period between the last day of limitation and the date on which the appeal was actually filed - the assessee was pursuing the legal remedy throughout the period and it was a case of pursuing the wrong remedy on mistaken advise – delay condoned and appeal admitted. Revision by CIT u/s 263 - Doctrine of merger - The AO in his order u/s 143(3) considered the issue of stock difference and rejected the contentions of the assessee - it cannot be said that there is non application of mind by the AO nor that the AO was negligent - the AO has applied his mind and after carefully considering the facts and circumstances of the case took a possible view - the order passed by the CIT (Central) u/s 263 is bad in law - For the proposition that the revision u/s 263 is bad in law, when the AO duly applied his mind – relying upon CIT vs. Bharat Aluminium Co.Ltd. [2007 (5) TMI 228 - DELHI HIGH COURT] - even otherwise, the issue of stock difference and the taxability of income was subject matter of appeal before the CIT(A), Ludhiana - The CIT(A) Ludhiana up held the order of the AO - Hence there is merger of the order of the AO with that of the order of the CIT(A) – thus, CIT(Central), Gurgaon does not have jurisdiction to invoke revisionary powers u/s 263 – thus, the order passed u/s 263 by the CIT(Central), Gurgaon is set aside – Decided in favour of assessee.
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