2024 (8) TMI 1163 - AT - Income Tax

Maintainability of appeal when alternative remedy u/s 264 already availed - HELD THAT - No doubt, the assessee vide letter has waived his right of appeal but Hon ble Madras High Court in the case of CIT vs. D. Lakshminarayanapathi 1998 (12) TMI 12 - MADRAS HIGH COURT has considered this issue and held that the provisions dealing with appellate jurisdiction do not bar an appellant from invoking the appellate jurisdiction for filing of appeal before CIT(A), even though the assessee had invoked revisional jurisdiction u/s.264. Thus set aside the order of CIT(A) holding the assessee s appeal as not-maintainable and direct him to re-decide the appeal as per law on merits. In term of the above, appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
Appeal maintainability when alternative remedy under section 264 of the Income Tax Act has been availed.

Analysis:
The appeal before the Appellate Tribunal arose from the order of the Commissioner of Income Tax (Appeals) dismissing the appeal as not maintainable due to the assessee already availing the alternative remedy under section 264 of the Income Tax Act against the assessment order. The assessee had filed a revision petition under section 264 after the assessment order was passed, which was subsequently dismissed by the Principal Commissioner of Income Tax. The assessee then filed an appeal before the Commissioner of Income Tax (Appeals) with a delay of almost 2.5 years, explaining the cause of delay. The Commissioner of Income Tax (Appeals) dismissed the appeal as not maintainable, citing the decision of the Hon'ble Orissa High Court that an assessee who has availed the remedy under section 264 cannot pursue an appeal under section 246A simultaneously or subsequently.

The assessee, in the appeal before the Tribunal, argued that invoking the revisional jurisdiction under section 264 does not bar the filing of an appeal before the Appellate Assistant Commissioner. The assessee relied on the decision of the Hon'ble High Court of Madras and a Co-ordinate Bench decision where it was held that the assessee can still file an appeal even after invoking the revisional jurisdiction. The Senior DR, on the other hand, contended that the provisions of section 264 itself bar the filing of an appeal after availing the alternative remedy. The Senior DR relied on a CBDT circular to support the argument that the provisions of the Act do not permit filing an appeal after availing the remedy under section 264.

The Tribunal, after hearing both sides, noted that the assessee had waived the right of appeal by filing a revision petition under section 264. However, following the decision of the Hon'ble Madras High Court, the Tribunal held that invoking the revisional jurisdiction does not constitute a bar for filing an appeal before the Appellate Assistant Commissioner. The Tribunal emphasized that the law does not impose a limitation on exercising different types of jurisdiction and that the aggrieved party can avail multiple remedies available. Therefore, the Tribunal set aside the order of the Commissioner of Income Tax (Appeals) and directed a re-decision on the appeal on merits. The appeal of the assessee was allowed for statistical purposes.

In conclusion, the Tribunal allowed the appeal filed by the assessee, emphasizing that invoking the revisional jurisdiction under section 264 does not preclude the filing of an appeal before the Appellate Assistant Commissioner. The Tribunal relied on the decision of the Hon'ble Madras High Court to support its decision and directed a re-decision on the appeal by the Commissioner of Income Tax (Appeals) on merits.