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TMI Blog2019 (12) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order passed by PCIT u/s 263 - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 5. Respectfully following the Judgment of Hon'ble apex court, we condone the delay in filing the appeal before CIT (A) and restore the matter back to his file for a decision on merit after providing adequate opportunity of being heard to both sides. In view of this decision, no adjudication on merit is called for at the present stage and we make no comment on merit. 6. In the result, this appeal in ITA No. 1492/Bang/2014 is allowed for statistical purposes. 7. Now, we take up the second appeal. In this appeal, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in the case of CWT vs. Sampathmal Chordia, 256 ITR 440 and submitted that this was held in this case that revisional jurisdiction cannot be exercised in a manner which would result in depriving the appellate authority of the power to examine the correctness of the order under appeal when an appeal has been filed and was pending. Learned DR of the revenue supported the impugned order passed by PCIT u/s 263. 9. We have considered the rival submissions and find that the AO has issued notice for reopening u/s 148 on 29.03.2012 as per copy available on page 29 of the paper book. Reasons recorded by the AO on 28.03.2012 are available on page 46 of the paper book and in these reasons, the allegation is the same as in Notice u/s 263 that the assessee company has taken accommodation entries of ₹ 65 lacs from Sri Aseem Kumar Gupta. Assessment order u/s u/s 143 (3) r.w.s. 147 was passed on 11.03.2013 and its copy is available on pages 37 to 42 of the paper book and an addition of ₹ 10 Lacs was made and against this assessment order, the assessee filed an appeal before CIT (A) on 19.03.2013 in Appeal No. 171/CIT (A) - 7/2014 - 15 and this appeal was pending before CIT (A) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and addition in the assessment order as under:- "5 The case has been reopened as a result of investigation carried out by investigation wing, New Delhi in which it was found that the assessee company has received accommodation entries from the parties as under:- a. ₹ 5,00,000/- from Kohinoor Oil Mills Ltd on 16-08- 2004 vide instrument No.139875 through SBI, Wazirpur Industrial Estate Branch, Delhi. b. ₹ 5,00,000/- from Puri Milk and Food Ltd on 16-08- 2004 vide instrument No.139820 through SBI, Wazirpur Industrial Estate Branch, Delhi. c. ₹ 5,00,000/- from Kohinoor Oil Mills Ltd on 16-08- 2004 vide instrument No.139875 through SBI, Wazirpur Industrial Estate Branch, Delhi. 5.1 The assessee was asked to explain why these amounts should not be added back u/s 68 of the Act. The assessee made a written submission on 07-02-2013. In the submission, it is pointed out that the entries at serial No.1 & 3 are repeated twice and hence only one entry is to be considered and not both. On verification, the assessee's contention is found to be correct, therefore, only two entries are considered instead of three. Accordingly, the amount to be considered for examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 on 11-03-2013 is held to be not sustainable." 10. From these paras reproduced from the order of CIT (A), it comes out that for deciding about the validity of reopening of the assessment, this aspect was open before CIT (A) that reopening was made for the allegation of accommodation entry of ₹ 65 lacs from Sri Aseem Kumar Gupta although no addition of ₹ 65 lacs was made by the AO in the assessment order passed u/s 147 rws 143 (3) of I. T. Act on 11.03.2013 and that order was under challenge before CIT (A) in that appeal which was pending before CIT (A) when the notice was issued u/s 263 by PCIT and the impugned order was passed by him. In our considered opinion, under these facts, this Judgment of Hon'ble Madras High Court rendered in the case of CWT vs. Sampathmal Chordia (Supra) is applicable and respectfully following the same, we hold that learned PCIT had no jurisdiction u/s 263 in the facts of the present case and hence, we set aside the impugned order passed by PCIT u/s 263 of I. T. Act, 1961. 11. In the result, this appeal of the assessee is allowed. 12. In the combined result, the appeal in ITA No. 1492/Bang/014 is allowed for statistical purposes and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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