Sri P. Venkata Krishna Reddy, Hyderabad vs Assessee
- CitationITA No.874/Hyd/2014 : Assessment year 2008-09
Ratio decidendi
The rule this decision rests on
A bona fide belief that no appeal lies against an order under section 263 of the Income Tax Act, 1961, because the Commissioner has remitted the assessment to the Assessing Officer for fresh assessment, is not by itself a reasonable or sufficient cause for condoning delay in filing the appeal, where no basis for that belief is shown and the assessee could have appealed against the consequential order of the Assessing Officer, which is itself a separate appealable order. Where an assessee seeks condonation of an inordinate delay in filing an appeal before the Tribunal, the assessee must establish sufficient cause for each part of the delay, and an unexplained or unfounded mistake of law as to the availability of appeal does not discharge that burden; absent sufficient cause, the delay is not condoned and the appeal is dismissed in limine.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Shri P.Venkata Krishna Reddy, V/s. Dy. Commissioner of Income-tax Hyderabad Circle 6(1), Hyderabad
(PAN - AJMPP 5855 P )
(Appellant) (Respondent)
Appellant by : Shri S.Rama Rao
Respondent by : Shri D.Sudhakar Rao CIT-DR
Date of Hearing 27.4.2015 Date of Pronouncement 29.4.2015
ORDER
Per G.C.Gupta, Vice President:
This appeal by the assessee for assessment year 2008- 09 is directed against the order of the Commissioner of Income-tax III, Hyderabad.
2. The only issue in this appeal is regarding validity of the order passed by the Commissioner of Income-tax under S.263 of the Income Tax Act, 1961.
3. The learned counsel for the assessee, at the outset, submitted that there is a delay of 353 days in the filing of this appeal before the Tribunal. The assessee has filed application for condonation of delay alongwith the affidavit supporting the 2 ITA No.874/Hyd/2014 Shri P.Venkata Krishna Reddy, Hyderabad
condonation application filed by him. The learned counsel for the assessee submitted that the Commissioner of Income-tax set aside the order of assessment framed under S.143(3) of the Act and directed the Assessing Officer to redo the assessment, vide order dated 22.3.2013. He submitted that the assessee was under a bona fide belief that no appeal need be filed against the order of the Commissioner, as the Commissioner has directed the Assessing Officer to re-do the assessment and as such appeal could be filed against the re-assessment order of the Assessing Officer. He submitted that the re-assessment was completed under S.143(3) read with S.263 of the Act by the Assessing Officer on 28.2.2014. At that stage, the assessee consulted his Advocate for advice and came to know that order passed under S.263 by the Commissioner was appealable and accordingly, filed the same before the ITAT on 9.5.2014.
4. The Learned Departmental Representative has opposed the submissions of the learned counsel for the assessee and submitted that no reasonable cause could be established by the assessee for the inordinate delay in this case in the filing of the appeal.
5. We have considered the rival submissions regarding the issue of condonation of delay of 353 days in the filing of the present appeal before the Tribunal. We find that the assessee could not establish any reasonable cause for not preferring an appeal in time against the order of the Commissioner passed under S.263 of the Act, setting aside the assessment to the file of the Assessing Officer for passing a de-novo assessment order. The basic facts of the case are not in dispute. The Commissioner passed the order under S.263 on 22.3.2013 and the assessee pleaded that it was under bona fide belief that no appeal need to be filed against the order of the 3 ITA No.874/Hyd/2014 Shri P.Venkata Krishna Reddy, Hyderabad
Commissioner, as such appeal can be filed against the re- assessment order of the Assessing Officer. The assessee could not show any basis for such a bona fide belief entertained by him that no appeal need to be filed against the order of the Commissioner. The assessee could definitely file an appeal against the order of the Assessing Officer passed in consequence of the order of the Commissioner under S.263 of the Act. There being no basis or valid reason for not pursuing the appeal against the order of the Commissioner passed under S.263 of the Act in time, we are of the view that the inordinate delay of 353 days in preferring the present appeal before the Tribunal is not condonable, being without any sufficient reason. Consequently, the request of the assessee for condonation of delay in filing the represent appeal before the Tribunal is rejected and the appeal of the assessee is dismissed, in limine.
6. In the result, appeal of the assessee is dismissed.
Order pronounced in the court on 29th April, 2015
Sd/- Sd/-
(P.M.Jagtap) (G.C.Gupta) Accountant Member Vice President
Dt/- 29th April, 2015
Copy forwarded to:
1. Shri P.Venkata Krishna Reddy, C/o. Shri S.Rama Rao, Flat No.102, Shirya's Elegance, No.3-6-643, Street No.9, Himayatnagar, Hyderabad 500029
2. Dy. Commissioner of Income-tax Circle 6(1), Hyderabad
3. Commissioner of Income-tax III Hyderabad
4. Departmental Representative, ITAT, Hyderabad. B.V.S
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free