Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2020 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (8) TMI 588 - ITAT COCHINCondonation of delay - delay of 245 days - order of the Pr. CIT passed u/s. 263 - HELD THAT:- As submitted AO passed an order giving effect to the said order of the Pr. Commissioner of income Tax, on 08-04-2019 and the said consequential order was received by the assessee on 11-04 -2019 - as the ITP of the assessee was not in a condition to take necessary action in the matter, he approached another ITP, on whose advice he filed the appeal in time before the CIT(A) on 25-04-2019 against the order dated 08-04-2019 passed by the AO. This appeal and stay petition were last posted on 31-10-2019. Only then, the assessee came to know that the correct remedy for him was to challenge the order of the Pr. CIT passed u/sec.263 of the IT Act dt. 10-01- 2019. Then, he approached his Authorised Representative - there was no willful negligence or laches on the part of the assessee and in case if this delay of 245 days is not condoned, it would cause irreparable harm and injustice to the assessee. We find that there is good and sufficient reasons for filing the appeal belatedly. Accordingly, we condone the delay of 245 days in filing the appeal and admit the appeal for adjudication. Revision u/s 263 - excess cash deposits - AO declared it his deemed turnover and 2.5% of such deemed turnover, being rate of Gross Profit declared, was brought to tax - CIT observed that AO should have treated this as unexplained cash credits u/s 68 and charged to tax at a special rate of 30% as per Section 115BEE - HELD THAT:- The additions made u/s. 68, 68, 69B, 69C and 69D of the I.T. Act cannot be set off with loss with effect from 01/04/2017. The direction of the Pr. CIT that addition u./s. 68 of the Act is to be made at special rate of 30% is proper if the addition made u/s. 68 of the Act is sustained by the Assessing Officer. Further, in this case, as rightly pointed out by the Ld. AR, the Pr. CIT had exercised his power u/s. 263 and he himself decided about the applicability of section 68 of the Act. Thereafter, he gave direction to the Assessing Officer to give opportunity of hearing to the assessee which is inappropriate. Pr. CIT pre-decided the issue and thereafter, directed the Assessing Officer to give opportunity of hearing to the assessee. We vacate this finding of the Pr. CIT and remit the issue in dispute to the file of the Assessing Officer to examine how the provisions of section 68 is not applicable to the assessee’s case. The Assessing Officer has to examine whether the provisions of section 68 is applicable to the assessee’s case or not. If the assessee is able to prove the identity and capacity of the parties concerned and the genuineness of the transactions to the satisfaction of the AO, he shall not make addition u/s. 68 of the Act. With this observation, we remit this issue to the file of the AO for fresh consideration - Appeal of the assessee is partly allowed for statistical purposes.
|