SHRI BALKRISHNA VITHAL SHINDE, MUMBAI V. ITO 28(1) (2) , MUMBAI

ITA 1753/MUM/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3721 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Condonation of delay
• Section: 147; 144; 80C; 69A; 264

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JM & SHRI PRASHANT MAHARISHI, AM आयकरअपीलसं./ I.T.A. No. 1753/Mum/2021 (ननधधारणवर्ा / Assessment Year: 2011-12) Shri Balkrishna Vithal Shinde A-9, Ganga Tower Co-op Housing Society, Plot No. 40A, Sector-16, Vashi, Navi Mumbai -400 703, बनाम/ Vs. ITO-28(1)(2), Mumbai-400 703 स्थधयीलेखधसं./जीआइआरसं./PAN No. AAIPS4294A (अपीलधथी/Appellant) : (प्रत्यथी / Respondent) अपीलधथीकीओरसे/ Appellant by : Shri B. N. Rao, Ld. AR प्रत्यथीकीओरसे/Respondent by : Shri Chetan M. Kacha, Ld. DR सुनवधईकीतधरीख/ Date of Hearing : 03.08.2022 घोर्णधकीतधरीख / Date of Pronouncement : 24.08.2022 आदेश / O R D E R Per Amit Shukla, Judicial Member: The aforesaid appeal has been filed by the assessee against the impugned order dated 24.02.2020, passed by Ld. CIT(A)-26, 2 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde Mumbai for the quantum of assessment passed u/s 144 r.w.s. 147 for AY 2011-12. 2. Assessee has raised the following grounds:- The Ld Commissioner of Income tax (Appeals) erred in dismissing the appeal holding the same as non-maintainable. The Ld Commissioner of Income tax (Appeals) ought to have given a reasonable opportunity by issuing show cause on the bases of his findings to dismiss the appeal which he has erred by failing to give the opportunity of hearing. 3. The brief facts of the case are that, here in this case the next party assessment order was passed wherein Ld. AO has made additions u/s 69A treating all the credit entries in the bank statement aggregating to Rs. 2,74,40,897/- as taxable income, which as per the assessee were on account of collection of sale proceeds of fruits received on sale of consignment basis. The relevant facts as appeared in the impugned order are read as under:- 4.1. The assesses is an individual engaged in the trading of fruits. During the year the assessee had declared income from Business 3 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde and Income from other sources as per computation of income filed. Total receipts of business had been shown at Rs. 37.30.29S/-From the ITS details of the assessee and material on records, it was seen by the AO that tie assessee was maintaining 8 bank accounts during the F.Y 2011-12. From the relevant bunk statements of the bank accounts, it was seen that there were several credits in these bank accounts which exceed the total receipts shown by the assessee. The assessee was asked to furnish his books of accounts/bills/vouchers for verification but the assessee failed to furnish any details, The show-cause notice was also issued but no compliance was made in this regard. The AO concluded that it was clear that assesses had no explanation for the large amount of credits to his bank accounts. Due to complete lack of evidences and cogent explanations, the cash deposits /other credits In the bank accounts were treated as unexplained money and Rs. 2,74,40,897/- was added u/s 69A of the IT Act to the total income of the assessee. The assesses also claimed deduction u/s 80C to Rs. 1,00,000/- but no supporting evidences were produced during the assessment proceedings. Hence, the AO rejected the claimed of Rs, 1,00,000/- as a deduction u/s. 80C. 4. Assessee aggrieved by the order of AO filed a revision application u/s 264 before PCIT -28, Mumbai which was rejected vide order dated 08.12.2015. Thereafter assessee preferred the appeal before Ld. CIT(A) and made very detail submissions which 4 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde are incorporated in the impugned appellate order. However, Ld. CIT(A) has dismissed the assessee’s appeal on the ground that assessee has already exercised the alternative remedy u/s 264. The relevant observation of Ld. CIT(A) is reads as under:- 6. I have gone through the factual matrix of the case and the submissions made by the assessee. All the Grounds of Appeal are effectively against the addition made by the AO in the assessment order and also against tie revisional order of the Pr. CIT-28, Mumbai wherein the revision application of the assessee u/s. 264 was rejected. 6.1 To put the facts in perspective, the assessment was completed by the AO in the instant case u/s. 144 r.w.s. 147 vide order dated 17.03.2015, Subsequently, the assessee filed a revision application u/s, 264 More the Pr. CIT-28, Mumbai on 07.04.2015. The Pr.CIT passed an order u/s. 264 on 08.12.2015 rejecting the application of the assessee. Aggrieved, the assessee then preferred the present appeal against the order of the AO along with condonation for delay. 6.2 In the backdrop of the above facts, it is pertinent to reflect upon the application of Doctrine of Merger in the instant case. As explained by the Hon'ble Apex Court in the case of Khoday Distilleries Ltd, vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd. reported in [2019] 104 taxmann.com 25 (SC), 5 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior Court, Tribunal or Authority is subjected to a remedy available under law before a superior forum, then, though the decree or order under challenge continues to be effective and binding, nevertheless, this finality is to put in jeopardy. Once the superior court disposes of the dispute before it in any manner, /.e, either by affirming the decree or order or by settings aside or by modifying the same, if is the decree of the superior Court, Tribunal or Authority which is the final binding and operative decree and We decree or order of the lower Court, Tribunal or authority gets merged into the order passed by the superior forum. 6.3 In the instant case, the impugned assessment order had merged into the order of the Pr. CIT and therefore, applying the Doctrine of Merger, the appeal before the CIT(A) against the order of the AO becomes non-maintainable. Once the assessee has exercised the provisions of section 264 , he is not left with the remedy to agitate the order of the AO against the CIT(A). With regards to the condonation application of the assessee, I am of the opinion that since the assessee has already exercised the alternative remedy u/s. 264, the present appeal becomes non- maintainable and the condonation petition of the assessee is hereby rejected. Accordingly, the appeal of the assessee is found to be not maintainable and is hereby 'Dismissed'. 6 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde 5. After hearing both the parties and after perusing the impugned order, we find that Ld. CIT(A) has rejected the assessee’s plea on the ground that assessee had already exercised the alternative remedy u/s 264, which is not justifiable as the assessee cannot be debarred from appellate remedy. The judgment relied on by the Ld. CIT(A) in the case of Khoday Distilleries Ltd, vs. Mahadeshwara Sahakara Sakkare Karkhane Ltd (supra) does not apply at all in the present proceedings, because here it is not a case that order u/s 264 has been decided on merit. Once the revision petition has been rejected without any order on merits, then assessee cannot be remediless and can still pursue the matter in appellate form which is in the first appellate authority. Thus, this matter is remanded back to the file of Ld. CIT(A) to consider the condonation of delay which was on account of the fact that assessee was under bonafide belief that matter would be decided in the revision application which has not been done and the said petition was dismissed. It was in these circumstances, assessee had filed the appeal before Ld. CIT(A). Accordingly, we direct the Ld. CIT(A) to decide this matter afresh condoning the delay in accordance with 7 I.T.A. No. 1753/Mum/2021 Shri Balkrishna Vithal Shinde law after giving due and effective opportunity of being heard to the assessee. 6. In the net result, the appeal filed by the assessee stands allowed for statistical purposes. Orders pronounced in the open court on 24 th August, 2022. Sd/- Sd/- (Prashant Maharishi) (Amit Shukla) Accountant Member Judicial Member मुंबई Mumbai;नदनधंक Dated : 24/08/2022 Sr.PS. Dhananjay आदेशकीप्रतितितिअग्रेतिि/Copy of the Order forwarded to : 1. अपीलधथी/ The Appellant 2. प्रत्यथी/ The Respondent 3. आयकरआयुक्त(अपील) / The CIT(A) 4. आयकरआयुक्त/ CIT- concerned 5. नवभधगीयप्रनतनननध, आयकरअपीलीयअनधकरण, मुंबई/ DR, ITAT, Mumbai 6. गधर्ाफधईल / Guard File आदेशानुसार/ BY ORDER, .उि/सहायकिंजीकार (Dy./Asstt.Registrar) आयकरअिीिीयअतिकरण, मुंबई/ ITAT, Mumbai