TMI Blog2023 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the CIT passed u/s 263 is bad in law and as such it is quashed. Appeal of assessee allowed. - I.T. A. No. 171/Asr/2022 - - - Dated:- 22-3-2023 - DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER For the Appellant : Sh. Surinder Mahajan, CA For the Respondent : Sh. S. R. Kaushik, CIT-DR ORDER Per Dr. M. L. Meena, AM: The present appeal has been filed by the assessee against the order of the Ld. Pr. Commissioner of Income Tax, Jalandhar-1, dated 28.03.2021 in respect of Assessment Year 2011-12. 2. The assessee has raised the following grounds of appeal: 1. That on the facts and circumstances of the case, Learned Pr. Commissioner of Income Tax, Jalandhar-1 ( Ld. CIT ) has grossly erred in law in passing order u/s 263 of the Act even though the assessment order u/s 143(3) r.w.s 147 of the Act dated 10.12.2018 passed by the Assessing Officer was neither erroneous nor prejudicial to interest of revenue. 2. That on the facts and circumstances of the case, Learned Pr. Commissioner of Income Tax, Jalandhar-1 ( Ld. CIT ) has grossly erred in law in passing order u/s 263 of the Act, when the assessment has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, proceedings initiated u/s 263 of the Act by invoking provisions contained in clause (a) of explanation 2 below sub section 1 of section 263 of the Act is illegal and bad in law since provisions contained in clause (a) of explanation 2 below sub section of section 263 of the Act were introduced by Finance Act 2015 and are not applicable to A.Y. 2011-12. 8. That the Appellant requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed off. 3. In the present case, appeal against order u/s 263 of the Act was required to be filed on or before. 02.06.2021 but it is being sent through speed post on 20.08.2022. Thus, there was a delay of 448 days in filing the appeal before the Tribunal. The Ld. Counsel explain that the delay was caused due to wrong advice of the CA that appeal would be filed after passing the assessment order in compliance to 263 order of the PCIT. The Ld. AR filed a written application for condonation of delay with the support of affidavit of the appellant assesse, as under: 1. That applicant has filed appeal against order u/s 263 of the Act dated 28.03.2021 passed by Principal Commissioner of Income Tax-1, Jalan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi (NFAC) vide order dated 28.03.2022. Assessee was further informed that appeal against assessment order is required to be filed and assessee is also entitled to question the order passed by Revisional Authority also on the ground that power of revision u/s 263 of the Act ought not to have been invoked in the facts and circumstances of the case and contend before the Tribunal that order passed by the Assessing Officer cannot be said to be erroneous as well as prejudicial to interest of revenue. On being advised assessee has filed appeal before Honorable ITAT Amritsar Bench, Amritsar on 20.08.2022 which is expected to be received in ITAT office on or before 23.08.2022 resulting in delay of 448 days. 7. That the delay in filing the appeal before Honorable Bench is neither intentional nor will full but due to the good and sufficient reasons shown herein above. Interest of justice demands that the present application is allowed and the delay in filing appeal be condoned so that the matter can be adjudicated upon on its merits. 8. That affidavit to this effect is enclosed herewith. 9. That it is, therefore, most respectfully prayed that this application ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words 'sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. It held that in every case of delay there can be some lapse on the part of the litigant concerned, but that alone is not enough to turn down his plea and to shut the door against him; and if the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. It also observed that if the delay is deliberate, then the Court should not accept the explanation. It held that while condoning the delay, the Court should compensate the opposite party with costs. 27. Applying the principles laid down in the above case to the instant case, we are of the opinion that, in the facts and circumstances of the case, the explanation for the delay offered by the appellant cannot be said to smack of mala fides or that it was put forth as a part of a dilatory strategy, and therefore, the Tribunal ought to have condoned the delay of said period of 154 days in filing the I.T.A. and taken up the matter on merits. 3.3 He further relies on the order of Hon ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to so. 3.4 Considering the facts and judicial precedents relied by the Ld. Counsel with the support of the affidavit of the appellant, we hold that the delay in filing the appeal before Tribunal is neither intentional nor willful but due to the good and sufficient reasons shown on account of wrong advice by the CA. The Ld. DR although has raised objection to the request of the assesse for condonation, however, he failed to rebut the contention raised by the assesse on bonafide. In the interest of justice, the delay in filing appeal is condoned and appeal admitted on merits. 4. The Ld. PCIT observed that the assessment has been finalized by the Assessing Officer, without carrying out the necessary verification regarding source of cash deposited in the Bank account. Accordingly, in view of provisions contained in clause (a) of Explanation 2 below sub section (1) of section 263 of the I.T. Act, 1961, he proposed to hold the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce you are given an opportunity to file your reply/objections, if any, to the proposed action before the undersigned by 22.03.2021 on which date your case stands fixed for hearing at 11.00 A.M. in the office of the undersigned at Aayakar Bhawan, Rishi Nagar, Ludhiana. The reply alongwith supporting documentary evidence, if any, may kindly be sent online or email which shall be duly considered before taking final decision in the matter. 2. The above show cause notice was issued through Speed Post as well as through ITBA System on 16.03.2021 fixing the case for 22-03-2021. The show cause notice was served on 17-03-2021. In response to the show cause on the given notice, the assessee submitted her reply online stating that whatever information was demanded by the A.O. were provided by her. But with his reply the assessee has neither attached any documents nor furnished the details of evidences which he quoted to produced before the A.O. during assessment proceedings. 3. In view of the above, it is apparent that the Assessing Officer has passed the order u/s 143(3) of the Act, without making required enquiries and verification in respect of the above issues, which should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quashed. The counsel contended that the proceedings initiated u/s 263 of the Act by invoking provisions contained in clause (a) of explanation 2 below sub section 1 of section 263 of the Act is illegal and bad in law since provisions contained in clause (a) of explanation 2 below sub section of section 263 of the Act were introduced by Finance Act 2015 and are not applicable to Assessment Year 2011-12, under consideration. The AR prayed that therefore, the order of the Learned Commissioner of Income Tax, Jalandhar-l ( Ld. CIT ) passed u/s 263 of the Act may be quashed. 6. Per contra, the Ld DR although supported the impugned order, however, he has not filed any rebuttal to the contention raised by the counsel as regards to the 263 proceeding initiated based on audit objection and that the order passed u/s 263 of the act is bad in law, since, provisions contained in clause (a) of explanation 2 below sub section of section 263 of the Act were introduced by Finance Act 2015 which are not applicable to Assessment Year under consideration. 7. Heard rival contentions, perused the material on record, impugned order, written submission and case law cited before us. Admittedly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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