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TMI Blog2022 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order u/s.143(3) r.w.s.263 of the Act, for all assessment years and has made additions to the issues questioned by the PCIT in 263 proceedings. The assessee has challenged the order passed by the AO u/s.143(3) r.w.s.263 of the Act, before the First Appellate Authority and challenged various additions made by the AO and not challenged legality of assessment order passed by the AO. The Ld.CIT(A) dismissed the appeal filed by the assessee ex-parte for non-appearance. The assessee carried the matter in further appeal before the ITAT and the Tribunal [ 2016 (4) TMI 1431 - ITAT CHENNAI] set aside the appeals to the file of the Ld.CIT(A) with a direction to re-consider the issues. At this stage, in the second round of litigation, the assessee has filed petition for admission of additional grounds by taking a legal ground challenging validity of additions made by the AO in the assessment framed u/s.143(3) r.w.s.153C of the Act, on the ground that additions made by the AO does not have any reference to incriminating material found as a result of search. We are not going into the aspects whether additions made by the AO are supported by any incriminating material found as a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai, all dated 03.03.2021 and pertains to assessment years 2003-04 to 2007-08. Since, facts are identical and issues are common, for the sake of convenience, these appeals were heard together and are being disposed off, by this consolidated order. 2. We find that appeal filed by assessee is barred by limitation, for which, necessary petition for condonation of delay explaining the reasons for the delay, has been filed. The learned counsel submitted that assessee could not file appeal within the time allowed under the Act, therefore, delay may be condoned. Having heard both sides and considered the petition filed by the assessee for condonation of delay, we are of the considered view that reasons given by assessee for not filing the appeal within the time allowed under the Act, comes under reasonable cause as provided under the Act, for condonation of delay and hence, delay in filing of above appeal is condoned and appeal filed by the assessee is admitted for adjudication. 3. The assessee has, more or less, raised common grounds of appeal for all the assessment years. Therefore, for the sake of brevity, grounds of appeal filed for the AY 2003-04, are re-produced as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n further appeal before the Tribunal and the Tribunal vide their order dated 01.04.2016 in ITA No.1334-1338/Mds/2015 set aside the appeals to the file of the Ld.CIT(A) with a direction to re-consider the issue in accordance with law. 5. In pursuant to directions of the ITAT, the First Appellate Authority has taken up the cases for hearing. During the course of second round of proceedings, the assessee has filed a petition for admission of additional ground before the Ld.CIT(A) in light of certain judicial precedents and challenged the validity of assessment order passed by the AO u/s.143(3) r.w.s.153C of the Act, and consequent additions made thereon in absence of incriminating material found as a result of search. The Ld.CIT(A) after considering relevant submissions of the assessee and also by following the decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT reported in [1998] 229 ITR 383 (SC), rejected the additional ground filed by the assessee and relevant findings of the Ld.CIT(A) are as under: 6. I have considered the of the case of the appellant. It is that the appellant filed this present appeal on 06.01.2014in Form No.35 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated and revised returns], need to pay advance tax and claiming credit for TDS/TCS in the manner provided in the Act. The Act at the same time has provided for penal and other consequences in case of failure to comply with the relevant provisions. Thus the Act enjoins upon a taxpayer the sacrosanct duty to file his return disclosing his total income as per the provisions of law and complying with them. In fact, the taxpayer is required to make verification while filing return of income. 9. In the case of the appellant, he had filed the return 17.08.2010 in response to the notice issued u/s.153C after carrying out necessary verification. The appellant, now seeks additional benefits that include income offered by him represented by unexplained opening balance in the assessment proceedings u/s.143(3) r.w.s.153C for which the assessment was completed on 30.11.2010. 10. In the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC), the Hon'ble Apex Court while considering the powers of the Appellate Commissioner as well as the Tribunal to permit additional grounds observed as under: In the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sun Engineering Works Private Ltd. (1992) 198 ITR 297(SC) wherein it has been held that section 147 of the Act is meant for the benefits of the Revenue and not for the assessee; and that the assessee cannot be permitted to convert the reassessment proceedings into an appeal or revision in disguise and seek relief in respect of items earlier rejected or claimed; relief in respect of items not claimed in the original assessment proceedings. Similarly, the provisions of Section 153A or 153C of the Act are directed to assess or reassess the income for six assessment years on search proceedings and hence the assessment proceedings under that section are for the benefit of revenue Taking into account the entire factual matrix of the case, and after considering that the twin tests laid down by the Hon'ble Supreme Court are not satisfied, I am of the view that the appellant has not offered any credible explanation that its omission to raise the additional grounds earlier was not willful or unreasonable. Therefore, I do not find any valid or appropriate reason to admit these additional grounds of appeal. Accordingly, the additional grounds of appeal relating to seeking additional benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee challenging validity of assessment proceedings is supported by plethora of judicial precedents, but, the question needs to be answered is, whether the assessee can take said legal ground in the proceedings pending before the First Appellate Authority in pursuant to assessment proceedings completed by the AO u/s.143(3) r.w.s.263 of the Act, or not. It is an admitted fact that the assessee does not challenge assessment order passed by the AO u/s.143(3) r.w.s.153C of the Act, in pursuant to search action conducted u/s.132 of the Act, and additions made by the AO thereon. In fact, the assessee has accepted assessment order passed by the AO and has not preferred any appeal before the First Appellate Authority. Therefore, in our considered view, the assessment proceedings in pursuant to search action u/s.132 of the Act, become final and reached finality. Further, the case has been subjected to 263 proceedings by the PCIT. The PCIT has taken up 263 proceedings on certain issues and set aside the assessment order passed by the AO u/s.143(3) r.w.s.153C of the Act, for the AYs 2003-04 to 2007-08 with a direction to AO to re-do the assessment on the issue questioned in the 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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