2023 (3) TMI 1002 - AT - Income Tax

Condonation of delay in the Tribunal appeal - assessee for filing this appeal late by 156 days - advise of tax consultant/advocate in another case while filing the appeal against the order passed u/s 153A r.w.s 143(3) - HELD THAT - We are of the considered view that the advise of tax consultant/advocate in another case while filing the appeal against the order passed u/s 153A r.w.s 143(3) of the Act cannot be a basis for filing the appeal late by 156 days Onus is on the assessee to explain by way of sufficient and plausible cause the delay in filing the appeal. In our humble understanding, the said cause shown by the assessee of the application is not a sufficient and plausible cause for the delay of 156 days in filing the appeal before the Tribunal. We are not hearing appeal against order u/s 153A r.w.s. 143(3) of the Act and it is also not clear that said assessment order was related or pertained to which assessment year. Thus, we safely hold that the cause shown by the assessee is not only insufficient but also implausible cause based irrelevant facts. Therefore, we decline to condone the delay of 156 days in filing the appeal. Admission of new/additional ground of the assessee and restoring the same for adjudication to the file of the AO - The assessee is seeking admission of additional ground and restoration of the same to the file of the AO for examination, verification and adjudication. Therefore, as per the prayer of the assessee itself, these grounds cannot be adjudicated by the Tribunal on the basis of the material available on record as per the prayer of the assessee itself. Admission of additional grounds No.1 to 3 are concerned, neither from the assessment order framed u/s 143(3) of the Act nor from the first appellate order of ld. CIT(A) we are unable to see any action, addition, disallowance or enhancement by the authorities below so far to validly enable the assessee to raise the same before this Tribunal as additional grounds, seeking the restoration of the same to the file of the AO for adjudication. Assessee, by way of raising new/additional ground cannot be allowed to retract or revise its returned income without filing retraction application and revised return of income within prescribed time limit in the garb of irrelevant new/additional grounds, that too in a non-maintainable being time barred appeal, which has been declared by the assessee in the return of income for AY 2013-14 itself and accepted by the AO. Application of the assessee for condonation of delay of 156 days and admission of new/additional grounds No.1 to 4 are dismissed.

Issues Involved:
1. Exclusion of additional income of Rs. 5,83,25,000/- from total income.
2. Satisfaction of the assessing officer regarding the availability of cash.
3. Restriction of depreciation claim.
4. Application for condonation of delay and admission of new/additional grounds of appeal.

Detailed Analysis:

1. Exclusion of Additional Income of Rs. 5,83,25,000/- from Total Income:
The assessee argued that the additional income of Rs. 5,83,25,000/- accepted during the course of the survey and offered for tax in the return of income should be excluded from the total income. The reason given was that no corresponding entry for the same was passed in the books of accounts of the appellant. The Tribunal noted that the assessee had declared this income in the return and the assessing officer had accepted it, making only two minor additions. The Tribunal held that the assessee could not retract or revise its returned income without filing a retraction application and revised return of income within the prescribed time limit. Thus, this ground was not admitted.

2. Satisfaction of the Assessing Officer Regarding the Availability of Cash:
The assessee contended that the additional income should be excluded since the assessing officer was satisfied with the availability of cash in the regular books of accounts of the appellant before its deposit in the bank account. The Tribunal observed that the assessing officer had accepted the returned income and made only two additions, indicating satisfaction with the cash availability. However, since the issue was not raised before the CIT(A) or in the initial appeal, it could not be admitted as a new ground at this stage.

3. Restriction of Depreciation Claim:
The assessee challenged the restriction of the depreciation claim to Rs. 2,05,69,740/- instead of the allowable Rs. 2,62,09,454/-. The Tribunal found that this issue was not raised before the CIT(A) and was being brought up for the first time in the appeal to the Tribunal. Since the issue was neither discernible from the assessment order nor the first appellate order, and the assessee had not agitated this before the CIT(A), the Tribunal declined to admit this ground.

4. Application for Condonation of Delay and Admission of New/Additional Grounds of Appeal:
The assessee filed the appeal late by 156 days and sought condonation of the delay, attributing it to advice received during another appeal. The Tribunal, referencing the Supreme Court's judgment in Collector Land Acquisition, Anantnag & Anr. vs Mst. Katiji & Ors, held that the reason provided was insufficient and implausible. Consequently, the delay was not condoned. Additionally, the Tribunal noted that the new/additional grounds were not raised before the CIT(A) and were not part of the assessment or first appellate orders. Hence, they could not be admitted for hearing or be restored to the assessing officer for verification and adjudication.

Conclusion:
The Tribunal dismissed the appeal in limine, rejecting the application for condonation of delay and the admission of new/additional grounds. The decision emphasized the procedural requirements for raising issues and the necessity of adhering to prescribed timelines for filing appeals.

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