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TMI Blog2017 (1) TMI 1767X X X X Extracts X X X X X X X X Extracts X X X X ..... the directions of the ld. CIT to withdraw the claim of deduction pertaining to assessment years 2008-09, 2009-10 & 2010-11. 3. The appeal is barred by limitation by 97 days. The ld. Senior Counsel drew our attention to the letter of the assessee requesting for condonation of delay. The relevant part of the condonation letter reads as under:- Sub: Condonation of delay for filing of Appeal Ref: Order u/s. 263 of the I.T. Act for the A.Y. 2007-08 In the case of the appellant, an order of assessment was made u/s. 143(3) dated 29.12.2009 assessing the total income at Rs. 6,02,610/- as against the returned income of Rs. 4,43,330/-. Thereafter, the Ld. Commissioner of Income Tax - I, Baroda passed an order u/s 263 directing the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survey proceedings and the proceedings u/s. 263 was on mistaken assumption of the facts as well as the law in this regard. It was also gathered that the Ld. CIT was duty bound to consider the various material available on record in relation to the claim and adjudicate the eligibility or otherwise of the claim instead of merely relying on the findings of the survey proceedings as well as concession given by the appellant. On realizing the position with respect to the rights of the appellant in law, the appellant is now preferring the present appeal which is belated on account of genuine and bonafide reasons as explained above. The present appeal, in accordance with law, was required to be filed on or before 07.12.2010 i.e. within 60 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are required to be decided on merits rather than dismissing the same on technical ground like delay etc. Unless it is found that there was gross negligence on the part of the assessee and/or there was any mala fide intention on the part of the assessee in not preferring the appeal within the period of limitation and/or in filing the appeals belatedly. For this proposition, we draw support from the decision of the Hon'ble Jurisdictional High court of Gujarat in the case of Jayvantsing N. Vaghela 40 teaxmann.com 491 in Tax Appeal No. 853 & 854 of 2013. 6. The Hon'ble Supreme Court in the case of Collecteor, Land Acquisition, Anantnag vs. Mst. Katiji [1987] 2 SCC 107 has observed that ordinarily a litigant does not stand to benefit by lodging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affairs of IMAT group. Shri Vijay Parmar stated that he is looking after the operation. A further perusal of the statement shows that at every stage, the deponent accepted the business activities and explained in detail how the web portal of the assessee operates. 11. We also find that the software Technology Parks of India (An autonomous Society under Department of Information Technology), has issued a registration certificate to the assessee as exhibited at pages 41 to 51 of the paper book. 12. In the light of the nature of activities explained in the statement recorded during the course of the survey proceedings. Let us now consider the Notification No. 890(E) issued by the Government in reference to Section 10A(b)(i)(2), 10B(b)(i)(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the claim of deduction. 14. In our understanding of the facts relating to the business activities of the assessee qua the statement recorded at the time of survey, the assessee under a mistaken belief has accepted to withdraw the claim of deduction which she was otherwise legally entitled. 15. It would be pertinent to refer to the observations of the Hon'ble High Court of Gujarat given in the case of S. R. Koshti in 276 ITR 165 and the same reads as under:- "The authorities under the Income-tax Act, 1961 are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Jurisdictional High Court (supra), the ld. Commissioner should not have revised the completed assessment made u/s. 143(3) of the Act. The ld. Commissioner further erred in directing the A.O. to withdraw the claim of deduction in subsequent assessment years also i.e. A.Ys. 2008-09, 2009-10 & 2010-11. 17. In our considered opinion, the ld. CIT ought to have verified independently the eligibility of the claim and the deduction permissible to the assessee. Considering the business activities of the assessee as explained during the course of the survey proceedings, in our understanding of the law, the assessee was very much eligible for the claim of deduction u/s. 10A of the Act which is well supported by the notification exhibited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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