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TMI Blog2020 (12) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... e is nothing on record that the delay has been condoned and the appeal has been admitted for adjudication and in such a situation, it cannot be held that mere filing an appeal where such appeal has not even been admitted for adjudication act as an estoppel in exercise of jurisdiction by the Pr. CIT u/s 263 of the Act. In any case, the ld AR has stated at the Bar that the assessee didn t wish to press ground no. 3 relating to clause (c) to explanation 1 to section 263 where it has been clearly spelt out that powers of the Pr CIT shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. In the instant case, where the appeal has not even been admitted for adjudication by the ld CIT(A), the question of subject matter of appeal been considered and decided in such appeal doesn t arise and therefore, the doctrine of merger of the assessment order with that of the appellate order doesn t arise for consideration and thus, in the instant case, there is no bar on exercise of jurisdiction of ld. Pr CIT u/s 263 - ITA No. 301/JP/2020 - - - Dated:- 7-12-2020 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred Ordinance. Therefore the appeal filed by the appellant is within time so allowed and hence delay of 143 days as alleged may kindly be condoned. 3. After hearing both the parties and considering the prevailing situation in the condition on account of covid-19 pandemic and the relaxation so provided in filing the appeal, the delay in filing the present appeal is condoned and the appeal is admitted for adjudication. 4. During the course of hearing, the ld. AR submitted that the appellant is an agent for providing various types of services to interested parties connected with Transport Department of the Government of the state, which inter alia includes getting Road Permits, Route Permits, Driving Licenses, Fitness Certificates etc. for the vehicles. In this process, he gets cash/ cheques from parties out of which major part pertains to payment of fees to the transport department. The appellant deposits such cash/ cheque in his account and makes payment of such fees to the department through cheque/ online payments. Some part of the receipts from parties is retained by the appellant as his service charges. In the return, the appellant had shown his nature of busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k accounts. Further the ld. Pr. CIT did not consider the details furnished by the appellant in the return. In the return the appellant had disclosed a sum of ₹ 6,40,800/- as his gross receipts which was his gross commission and after deducting expenses for running his business, he has offered ₹ 1,40,300 as his income from this business, against which the ld. AO has estimated the income at ₹ 8,44,745/-. Hence the order passed by the ld. Pr. CIT is bad in law and is required to be quashed. Reliance in this regard is placed on the judgment of the Hon ble Mumbai High Court in the case of Pr. CIT v/s Cartier Leaflin P. Ltd. (268 Taxman 222) (2020) wherein the ld. Pr. CIT passed order u/s 263 on account of lack of enquiry by the ld. AO on account of claim of operating loss of ₹ 8.80 Crores. The Hon'ble Mumbai High Court quashed the order by holding that from the order of the ld. AO, it was quite verifiable that the ld. AO had examined the documents available with him before passing the order. In the instant case also, it is discernible from the order of the ld. AO that he had bank statements of the appellant wherefrom he verified that there were various debit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see that the assessee had preferred in appeal before the ld. Pr. CIT, it was submitted that no supporting evidence was furnished before the ld. Pr. CIT and even if the appeal has been filed by the assessee, the ld Pr. CIT continue to enjoy the jurisdiction u/s 263 so long as the matter had not been considered and decided in such appeal. He accordingly supported the order of the ld. Pr. CIT and submitted that there is no infirmity in the exercise of his jurisdiction u/s 263 and passing of the necessary directions wherein the matter has been set aside to the file of the Assessing Officer for passing a fresh order after carrying out necessary enquiry and providing reasonable opportunity to the assessee. 9. We have heard the rival contentions and purused the material available on record. We refer to the relevant findings of the Assessing officer and the same reads as under: 9. During the assessment proceedings, on the perusal of bank account statements and ITS detail of the assessee, it was observed that assessee has made various cash deposit transaction in his bank accounts totaling to ₹ 84,47,450/- and made various debit entries to various persons/entities through chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income, arrive at the taxable income afresh as per law after providing reasonable opportunity to the assessee. Accordingly, the order so passed by the ld Pr CIT is modified to this extent. 11. Regarding the contention of the ld AR that an appeal has been preferred against the assessment order before the ld CIT(A) and therefore, the matter is beyond the jurisdiction of the ld Pr CIT u/s 263, we find that though there is no dispute that the assessee has preferred an appeal before the ld CIT(A), however, such an appeal has been delayed filed and there is nothing on record that the delay has been condoned and the appeal has been admitted for adjudication and in such a situation, it cannot be held that mere filing an appeal where such appeal has not even been admitted for adjudication act as an estoppel in exercise of jurisdiction by the Pr. CIT u/s 263 of the Act. In any case, the ld AR has stated at the Bar that the assessee didn t wish to press ground no. 3 relating to clause (c) to explanation 1 to section 263 where it has been clearly spelt out that powers of the Pr CIT shall extend and shall be deemed always to have extended to such matters as had not been considered an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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