2022 (1) TMI 1425 - AT - Income Tax

Maintainability of appeal against Revision order u/s 263 - DR objected to the assessee s filing the appeal directly to the Tribunal against the AO s action giving effect to the 263 order passed by the Ld. Pr. CIT - according to Ld. CIT DR, the appeal of the assessee is invalid and the Tribunal does not have the jurisdiction to hear the appeal of the assessee even though revised Form No 36 has been filed by the assessee - HELD THAT - We note that the assessee was the same who appeared on behalf of the appellant in the case of M/s. Good point Stockist Pvt. Ltd. ( 2021 (8) TMI 1411 - ITAT KOLKATA and the facts of the present case are similar/identical in nature as that of M/s. Good point Stockist Pvt. Ltd. (supra) where the Tribunal was pleased to allow the assessee to withdraw the appeal and had given liberty to file fresh appeal against the action of the Ld. PCIT-4, Kolkata. The Tribunal was also pleased to condone the time consumed in prosecuting the appeal i.e. from the date of filing of the present appeal till receiving the copy of the Tribunal order and the period not to be taken into consideration for the purpose of calculating the limitation period. With the aforesaid same observation we allow the assessee to withdraw the appeal. Appeal of the assessee is allowed.

Summary

Issues:
Appeal jurisdiction of the Tribunal in a case of time-barred appeal and revised Form No. 36 filing.

Analysis:
The judgment involves an appeal by the assessee against the order of the Assessing Officer (AO) passed under sections 144 and 263 of the Income-tax Act, 1961 for AY 2012-13. The appeal was noted to be time-barred by 147 days. The assessee filed a revised Form No. 36 challenging the order passed by the Principal Commissioner of Income Tax (PCIT) dated 12.03.2019. The issue arose regarding the jurisdiction of the Tribunal to hear the appeal directly against the AO's action giving effect to the 263 order passed by the PCIT. The CIT DR contended that the appeal should have been preferred before the CIT(A) rather than the Tribunal. The AR of the assessee argued that a similar issue was addressed by the Tribunal in another case, where a similar defect was noticed, and the appeal was allowed to be withdrawn with liberty to file a fresh appeal against the PCIT's action.

The Tribunal considered the submissions and observed that the facts of the present case were similar to the previous case where the appeal was allowed to be withdrawn with liberty to file a fresh appeal against the PCIT. The Tribunal, in line with the previous decision, allowed the assessee to withdraw the appeal and granted liberty to file a fresh appeal against the action of the PCIT. The time consumed in prosecuting the appeal was not considered for the purpose of calculating the limitation period. The Tribunal also noted that the same AR represented the assessee in both cases, further strengthening the similarity in nature between the cases.

In conclusion, the Tribunal allowed the assessee to withdraw the appeal and granted permission to file a fresh appeal against the action of the PCIT. The appeal of the assessee was allowed, and the order was pronounced on 5th January 2022.