TMI Blog2023 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, we decline to condone the delay of 156 days in filing the appeal. Admission of new/additional ground of the assessee and restoring the same for adjudication to the file of the AO - The assessee is seeking admission of additional ground and restoration of the same to the file of the AO for examination, verification and adjudication. Therefore, as per the prayer of the assessee itself, these grounds cannot be adjudicated by the Tribunal on the basis of the material available on record as per the prayer of the assessee itself. Admission of additional grounds No.1 to 3 are concerned, neither from the assessment order framed u/s 143(3) of the Act nor from the first appellate order of ld. CIT(A) we are unable to see any action, addition, disallowance or enhancement by the authorities below so far to validly enable the assessee to raise the same before this Tribunal as additional grounds, seeking the restoration of the same to the file of the AO for adjudication. Assessee, by way of raising new/additional ground cannot be allowed to retract or revise its returned income without filing retraction application and revised return of income within prescribed time limit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of additional income as offered during the course of survey even though cash as available in the books of account duly justified the source of amount as advanced and, therefore, no corresponding entry was passed in respect of such additional income in the books of account of the assessee. The ld. AR further explained that subsequently the case was selected for scrutiny and the assessment order was passed u/s 143(3) of the Income-tax Act, 1961 (for short, the Act ) on 15.02.2016 after making additions of Rs.13,23,104 viz., addition of Rs.6,22,252/- u/s 36(1)(iii) of the Act and Rs.7,00,852/- u/s 36(1)(va) r.w.s 43B of the Act. From the said affidavit, the ld. AR also submitted that the assessee company as per Form No.35, challenged the addition of Rs.7,00,852/- made to the total income of the assessee before the ld.CIT(A) which was deleted by the ld. First appellate authority, vide order dated 24.09.2018. 4. The ld. AR further explained that during the course of appeal as filed against the order passed u/s 153A r.w.s 143(3) of the Act, it was explained to the assessee that additional income to the tune of Rs.5,83,25,000/- was offered to tax in the return of income fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld.CIT(A) deleting the addition and no grievance of the assessee was left to be agitated before the ITAT. Further drawing our attention towards new/additional grounds of the assessee placed in the revised form No.36 dated 15.11.2022, the ld. Sr. DR submitted that these grounds of the assessee were not raised before the ld.CIT(A) and were not an issue before the AO during assessment proceedings u/s 143(3) of the Act. The ld. Sr. DR submitted that the AO made two additions out of which the assessee accepted the first addition of Rs.6,22,252/- without disputing the same before the ld.CIT(A) and raised the sole ground challenging the addition of Rs.7,00,852/- and the said sole grievance of the assessee was allowed by the ld.CIT(A). Therefore, when no grievance was there of the assessee, then, the appeal filed belatedly by 156 days and new/additional grounds of appeal should not be admitted and considered for adjudication. The ld. Sr. DR strongly opposed the condonation of delay as well as admission of new/additional grounds of the assessee and submitted that first of all the appeal is not maintainable as no grievance of the assessee has been left unadjudicated or unaddressed at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh as available in the regular books of accounts of the company. Hence, it was advised to file an appeal before the Hon ble Bench at the earliest without any further delay. It was for this reason that the present appeal is being filed late. 11. On careful consideration of the reason and cause shown by the assessee for filing this appeal late by 156 days, we are of the considered view that the advise of tax consultant/advocate in another case while filing the appeal against the order passed u/s 153A r.w.s 143(3) of the Act cannot be a basis for filing the appeal late by 156 days. In the case Collector Land Acquisition, Anantnag Anr. vs Mst. Katiji Ors, judgement dated 19 February, 1987, reported in 1987 AIR 1353 their Lordships, speaking for the Hon ble Supreme Court, categorically held that the onus is on the assessee to explain by way of sufficient and plausible cause the delay in filing the appeal. In our humble understanding, the said cause shown by the assessee in para 2.6 of the application is not a sufficient and plausible cause for the delay of 156 days in filing the appeal before the Tribunal. We are not hearing appeal against order u/s 153A r.w.s. 143(3) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee itself. At the same time, we may also point out that the ground No.4 of the assessee has been added by way of filing revised form No.36 on 15.11.2022 and this ground was not placed in the original Form No.36 dated 21.05.2019. In our humble understanding when the assessee has not chosen to agitate issue of addition of rs.6,22,252/- made u/s 36(1)(iii) of the Act before the ld.CIT(A) which was clearly discernible from the assessment order, then, the same cannot be raised or agitated before the Tribunal as an additional ground by way of revised Form No.36 as ground No.4. So far as issue of admission of additional grounds No.1 to 3 are concerned, neither from the assessment order dated 15.02.2016 framed u/s 143(3) of the Act nor from the first appellate order of ld. CIT(A) dated 24.09.2018, we are unable to see any action, addition, disallowance or enhancement by the authorities below so far to validly enable the assessee to raise the same before this Tribunal as additional grounds, seeking the restoration of the same to the file of the AO for adjudication. 14. Furthermore, so far as ground No.1, 2 and 3 are concerned, the grievance of the assessee pertaining to these grounds ..... 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