TMI Blog2023 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment as framed under section 143(1) dated 18.06.2013 i.e. from the end of financial year 31.3.2016. We incline to hold that the revisionary jurisdiction exercised by the ld. PCIT is hopelessly barred by limitation. Appeal of the assessee is allowed. - SRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SONJOY SARMA, JUDICIAL MEMBER Appearances by: Sh. S.K. Pransukha, FCA, appeared on behalf of the Assessee. Sh. Subhrajyoti Bhattacharjee, CIT (D/R), appeared on behalf of the Revenue. ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER: The only issue raised by the assessee in the various grounds of appeal is against the exercise of revisionary jurisdiction u/s 263 of the Act by ld. Pr. CIT revising the assessment order passed u/s 147 r.w.s. 144 of the Income Tax Act, 1961 (in short the 'Act') which is beyond the limitation as provided in Section 263 sub-Section 2 of the Act. 2. At the outset, we observe that there is a delay of 353 days in filing the appeal. Ld. A/R submitted that Sh. Ram Gopal Sadani, Director of the assessee company, residing at 5B, Russel Street, Kolkata-71, is an aged person of about 80 years. Ld. A/R submitted that said person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Commissioner. Similarly, it has been used in Section 5 of the Indian Limitation Act, 1963. Whenever interpretation and consideration of this expression has fallen for consideration before the Hon'ble High Courts as well as before the Hon'ble Supreme Court then, the Hon'ble Courts were unanimous in their conclusion that this expression has to be construed liberally. We may make reference to the following observations of the Hon'ble Supreme Court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji Others, 1987 AIR 1353: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered tliat in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. 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. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a ITA No.201, 202 and 203/Ahd/2020 salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss. 6. We do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that in the present case initially the order u/s 143(1) of the Act was passed on 18.06.2013 and thereafter the reassessment was framed vide order dated 29.09.2021. Ld. A/R contended that the issues were raised by ld. Pr. CIT of dealing in by the assessee in two penny scrips Clarus Finance and Security Ltd and Blue Circle Services Ltd. in the revisionary proceedings and came to the conclusion that there was non-enquiry by ld. AO into the transactions done by the assessee by trading in Clarus Finance Securities Ltd. and Blue Circle Services Ltd. The ld. AR contended that these scripts were not the subject matter of the reasons recorded nor the reassessment proceedings before the AO. Ld. A/R stated that in the revisionary proceedings the issue was two penny scrips Clarus Finance and Security Ltd and Blue Circle Services Ltd. and A/R therefore, submitted that the jurisdiction u/s 263(1) of the Act could have been exercised by ld. Pr. CIT from the end of financial year in which the order u/s 143(1) of the Act dated 18.06.2013 was passed meaning thereby that limitation of two years shall be taken from 31.03.2014 and this limitation would be over by 31.03.2016. Ld. A/R submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in terms of provisions of Section 263(2) of the Act. Considering the facts of the case vis a vis the and the provisions of section 263(2) of the Act and also the citations made by the ld. Counsel before us, we are of the considered view that it is the original assessment order passed under section 143(1) of the Act which could be considered as erroneous and prejudicial to the interest of the Revenue but not the assessment as framed in the re-assessment proceedings u/s 144/147 of the Act dated 29.09.2021, in which these two penny scrips were not subject matter of reasons recorded nor did these come to the notice of the AO during the course of re-assessment proceedings. In our opinion, the limitation runs from the end of the financial year in which the original order under section 143(1) of the Act was framed, i.e. 18.06.2013 and the limitation period expired on 31.03.2016, whereas the ld. PCIT has set aside and revised the assessment order as framed u/s section 144 read with section 147 of the Act dated 29.09.2021 and consequently the revisionary jurisdiction of the ld. PCIT cannot be sustained. The case of the assessee finds force from the decision in the case of CIT vs.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nued to hold the field as regards the three issues in question. The order dated March 10, 1999, did not merge with the orders of reassessment in respect of issues which did not form the subject matter of the reassessment. Consequently, Explanation 3 to section 147 would not alter that position. Explanation 3 only enables the Assessing Officer, once an assessment is reopened, to assess or reassess the income in respect of any issue, even an issue in respect of which no reasons were indicated in the notice under section 148(2). This, however, will not obviate the bar of limitation under section 263(2). The invocation of the jurisdiction under section 263(2) was barred by limitation . 12. In the instant case before us also the issue on which the ld. PCIT proposed the revision of order framed u/s 144 r.w.s. 147 of the Act dated 29.09.2021, in which these two scrips were not the subject matter of re-assessment proceedings. Therefore, the period of limitation has to run from the date of assessment as framed under section 143(1) dated 18.06.2013 i.e. from the end of financial year 31.3.2016. In view of this, we incline to hold that the revisionary jurisdiction exercised by the ld. PCI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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