2020 (8) TMI 801 - AT - Income Tax

Rectification of mistake - error apparent on the face of record - review of decision rendered by the Tribunal - section 254(2) of the I.T.Act, 1961 - HELD THAT - Ongoing through the reasons given by the Tribunal for rejection of the claim of the assessee for condonation of delay and the pleadings taken by the assessee in its miscellaneous application, we find that although, the Tribunal has accepted the fact that delay in filing appeal was due to wrong advice of counsel, but proceeded to dismiss the appeal on the sole basis of finding that it is an afterthought of the assessee, after the Ld. AO has decided to make additions, in respect of issues questioned by the Ld.CIT(A), ignoring the pleading of the assessee, in light of affidavit of Shri Nilesh Y.Jagiwala, Chartered Accountant, who attended the proceedings u/s 263 of the Act, along with certain judicial precedents, including the decision of Hon ble Bombay High court - The said findings of the Tribunal constitute a mistake apparent on record, which can be rectified u/s 254(2) of the I.T.Act, 1961. The order of Tribunal recalled - the registry directed to refix the case for hearing in due course - application allowed.

Summary

Issues:
1. Condonation of delay in filing appeal under section 254(2) of the Income Tax Act, 1961.
2. Consideration of wrong advice by counsel as a reasonable cause for delay.
3. Misinterpretation of facts leading to dismissal of appeal.
4. Application for rectification under section 254(2) of the Income Tax Act, 1961.

Condonation of Delay:
The assessee filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, against the order of the Tribunal dated 29/11/2019, seeking condonation of a 191-day delay in filing an appeal for the assessment year 2013-14. The delay was attributed to incorrect advice from the Chartered Accountant who attended the proceedings under section 263 of the Act. Despite the Tribunal acknowledging the delay was due to wrong advice, it dismissed the appeal, considering it an afterthought by the assessee after the Assessing Officer decided to make additions. The Tribunal's decision was based on the belief that the assessee consciously chose not to file the appeal initially. However, the Tribunal's findings were challenged as a mistake apparent on record, highlighting the misinterpretation of facts and the reliance on incorrect grounds for dismissal.

Wrong Advice as Reasonable Cause:
The applicant argued that the Tribunal erred in dismissing the appeal solely on the grounds of being an afterthought by the assessee, disregarding the incorrect advice given by the Chartered Accountant. The applicant contended that the advice was against the settled position of law, as the jurisdiction of the Principal Commissioner of Income Tax (PCIT) could only be challenged before the Tribunal. The Chartered Accountant admitted to providing inaccurate advice due to inexperience, which was later corrected during a conference with a different counsel. The affidavits submitted by the Chartered Accountant and the director of the assessee-company remained uncontroverted, emphasizing the mistake in the Tribunal's reasoning for rejecting the condonation of delay.

Misinterpretation of Facts:
The Tribunal's decision to dismiss the appeal was challenged on the grounds of misinterpreting the facts presented by the assessee. The applicant clarified that the decision to file the appeal was based on advice received after the incorrect advice from the Chartered Accountant, not as an afterthought due to the Assessing Officer's intentions to make additions. The Tribunal's failure to consider these crucial details and the misinterpretation of the application for condonation of delay led to an erroneous dismissal of the appeal.

Rectification Application:
After hearing both parties and reviewing the contents of the miscellaneous application, the Tribunal acknowledged the mistake apparent on record in its earlier decision. Considering the incorrect grounds for dismissal and the misinterpretation of facts, the Tribunal recalled its order dated 29/11/2019 in ITA No.7115/Mum/2018 for the assessment year 2013-14. The Tribunal directed the registry to refix the case for hearing, allowing the miscellaneous application filed by the assessee.

The judgment highlights the importance of considering all relevant factors, including incorrect advice by professionals, in the context of condonation of delay in filing appeals. It emphasizes the need for a comprehensive analysis of facts and legal provisions to ensure justice and fairness in tax matters.