| Question And Answer | |
|---|---|
| Subject: | Refiling of appeal |
| Category: | Income-Tax |
| Querist: | Ruchi Bhansali |
| Answered by: | Research Team |
| Tags: | appeal, order passed u/s 144, withdrawal of appeal before CIT (A) |
| Date: | October 6, 2021 |
Assessment order was completed u/s 144 of the Act by making an addition of Rs. 20,70,000/- along with demand notice raising demand of Rs. 1,03,62,001/-. In the computation sheet gross total income was considered at Rs. 82,80,000/-. An assessee filed an appeal against the said order before CIT(A). The assessee has also filed an application u/s 154 of the Act pointing the mistake apparent from record in the computation sheet enclosed along with the demand notice. The AO has passed order u/s 154 on 11.02.2020 and reduced the income by Rs. 62,10,000/- and raised the revised demand of Rs. 25,90,455/-. On receipt of rectification order, the AR of the assessee advised him to withdrawn an appeal filed against original order passed u/s 144 by making an application on 19.08.2020. Accordingly, CIT(A) has passed the order allowing withdrawal request of assessee on 20.08.2020.
Meanwhile, as per the AR’s advice, assessee has filed an appeal against the order passed u/s 154 wherein the ground has been raised that Ld AO erred in making addition of Rs. 20,70,000/- as undisclosed income u/s 69 of the Act.
In this background, whether –
(a) Assessee can context the addition of Rs. 20,70,000/- made in the assessment order u/s 144 in an appeal filed against order u/s 154 of the Act?
(b) Assessee can file an appeal against an order passed u/s 144 of the Act with delay condonation once again?
(c) Assessee can file a petition u/s 264 of the Act against the order passed u/s 144 on 08.12.2019 since he can file within one year from the date of receipt and due to the covid period limitation is extended?
Kindly guide!
The assessee should file an appeal before the Appellate Tribunal against the order of CIT (A) allowing the withdrawal of appeal dt. 20-8-2020 . As per the order of Supreme Court in Miscellaneous Application No 665 of 2021 in SMW (C) No. 3 of 2020 dtd 23/9/2021 where period of limitation would have expired between 15.3.2020 till 2.10.2021 then limitation period shall be extended for 90 days from 3.10.2021. The period of limitation extended by the Supreme Court is applicable to the assessee. The assessee can also make an application for condonation of delay in filing the appeal due to wrong advice. The application for condonation of delay must be supported by an affidavit. The Tribunal may condone the delay and remand the matter to the file of CIT(A) to decide on merit. In Deekay Gears v. ACIT (SMC) (2019) 175 DTR 257 / 198 TTJ 101 / (2020) 77 ITR 150 (Mum.)(Trib.) www.itatonline.org In the Course of hearing before CIT(A) the assessee filed an application for withdrawal. CIT(A) dismissed the appeal as withdrawn. The assessee filed an appeal before the Appellate Tribunal stating that the withdrawal was without knowing the merit of the case and consequences. It was also contended that the CIT(A) is incompetent to dismiss the appeal in limine without deciding on merits. Appellate Tribunal following the jurisdictional High Court in CIT v.Premkumar Arjundas Luthra (HUF) (2016) 240 Taxman 133/(2017) 154 DTR 302 / 297 CTR 614 (2017) 297 CTR 614 (Bom) (HC) allowed the appeal of the assessee and set aside the matter to CIT(A) to decide on merit. Cases referred, CIT v. Raj Bahadur Hardutroy Motilal Chamaria (1967) 66 ITR 443(SC), M. Loganathan v. ITO (2013) 350 ITR 373 (Mad) (HC). Tribunal also condoned the delay of 116 days in filing the appeal before the Appellate Tribunal. Also refer HV Metal ARC (P.) Ltd. v. ACIT (2018) 173 ITD 606 (Delhi)(Trib.)
The assessee can also file appeal against the order rejecting the claim u/s. 154 of the Act. The issue being debatable the CIT ( A) may not grant the relief .
It is not desirable to approach the Commissioner u/s 264 . The assessee may not get the relief . Once the application is rejected by the Commissioner the assessee may have to file writ before the High Court .
After filing an appeal before the Appellate Tribunal , the assessee may make an application for early hearing of the appeal . The application for early hearing is fixed within one week of filing of an application .
We are of the view that the assessee may get the relief from the Appellate Tribunal at the earliest . The assessee may contact the tax consultant for further guidance .