N.Gandhara Bose, Vijayawada V. THE ITO, Vijayawada

ITA 257/VIZ/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1137 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 09-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVINDA RAJAN
• Keywords: Bonafide belief; Reasonable cause; Assessment record; Condonation of delay
• Section: 143(3); 263

Judgement Text

ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NOS.256&257/VIZAG/2015 ( / ASSESSMENT YEARS: 2008-09) N. GANGADHARA BOSE VIJAYAWADA VS. ITO, WARD - 2(1), VIJAYAWADA [PAN: ABHPN8149B ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI GOVINDARAJAN, DR / DATE OF HEARING : 04.05.2016 / DATE OF PRONOUNCEMENT : 27.05.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE ARE TWO APPEALS FILED BY THE ASSESSEE ARE DI RECTED AGAINST THE ORDER OF CIT, VIJAYAWADA U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') AND CIT(A), VIJAY AWADA U/S 250 OF THE ACT RESPECTIVELY AND PERTAINS TO A.Y. 2008-09. SINC E, THE ISSUES INVOLVED ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 2 IN THESE APPEALS ARE COMMON, THEY ARE CLUBBED, HEAR D TOGETHER AND DISPOSED OFF, BY WAY OF THIS COMMON ORDER FOR THE S AKE OF CONVENIENCE. ITA NO.256/VIZAG/2015: 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 31.7.2008 DECLARING TOTAL INCOME OF ` 68,750/-. THE CASE HAS BEEN SELECTED FOR SCRUTINY AND AFTER DUE PROCESS OF LAW, THE ASSESSME NT WAS COMPLETED U/S 143(3) OF THE ACT AND DETERMINED TOTAL INCOME ` 3,48,750/-. THEREAFTER, THE CIT VIJAYAWADA ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT AND ASKED TO EXPLAIN WHY THE ASSESSMENT ORD ER SHALL NOT BE REVISED. THE CIT PROPOSED TO REVISE THE ASSESSMENT ORDER FOR THE REASON THAT ON EXAMINATION OF ASSESSMENT RECORDS, IT WAS N OTICED THAT THE A.O. HAS NOT EXAMINED THE ISSUE OF CASH DEPOSITS INTO BA NK ACCOUNT AND WITHOUT EXAMINING THE ISSUE HAS SIMPLY ACCEPTED THE RETURN OF INCOME FILED BY THE ASSESSEE. THEREFORE, THE ASSESSMENT OR DER PASSED U/S 143(3) OF THE ACT DATED 29.12.2010 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE CI T FURTHER OBSERVED THAT THE ASSESSEE HAS MAINTAINED SAVINGS BANK ACCOUNT AT ING VYSYA BANK AND THE BANK ACCOUNT IS FOUND CREDITED WITH CASH DE POSITS TO THE EXTENT OF ` 91 LAKHS. DURING THE COURSE OF ASSESSMENT PROCEED INGS, NEITHER THE ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 3 ASSESSEE HAS FURNISHED THE DETAILS WITH REGARD TO T HE CASH DEPOSITS NOR THE A.O. EXAMINED THE DETAILS OF CASH DEPOSITS WITH REGARD TO THE NATURE AND SOURCE OF CREDIT FOUND IN THE BANK ACCOUNT. IT WAS FURTHER OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, T HE A.O. HAS ACCEPTED THE REVISED COMPUTATION FILED BY THE ASSES SEE, WHEREIN IT WAS STATED THAT THE SOURCES FOR THE CASH DEPOSITS INTO THE BANK ACCOUNT WAS ADVANCES RECEIVED FROM CUSTOMERS TOWARDS SALE OF FI SH PRODUCTS. THOUGH ASSESSEE CLAIMS TO HAVE CARRYING OUT PISCI C ULTURE, THE SAID BUSINESS OF PISCI CULTURE HAS NOT BEEN DECLARED IN THE REGULAR RETURN FILED FOR THE ASSESSMENT YEAR. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HE HAD FILED A REVISED STATEMENT OF TO TAL INCOME AND DECLARED LOSS UNDER THE HEAD INCOME FROM BUSINESS. THE A.O. WITHOUT EXAMINING THE DETAILS WHETHER THE ASSESSEE HAS CARR IED OUT THE BUSINESS ACTIVITY OR NOT AND ALSO WITHOUT EXAMINING THE DETA ILS WITH REGARD TO THE LAND HOLDINGS AND OTHER DETAILS, SIMPLY ACCEPTED TH E REVISED COMPUTATION FILED BY THE ASSESSEE AND COMPLETED THE ASSESSMENT. THEREFORE, THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IS ER RONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. WITH THESE OBSERVATIONS, THE CIT REVISED THE ASSESSMENT ORDER AND SET ASIDE THE ORDER PASSED BY THE A.O. U/S 143(3) OF THE ACT DATED 29.12.2010 AND DIRECTED THE A.O. TO REDO THE ASSESSMENT AFTER GIVING REASONABLE OPPO RTUNITY OF BEING ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 4 HEARD TO THE ASSESSEE. AGGRIEVED BY THE CIT ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING, THE LD. A.R. OF THE ASSE SSEE SUBMITTED THAT THERE IS A DELAY OF 764 DAYS IN FILING THIS APPEAL. THE A.R. FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED A PETITION FO R CONDONATION OF DELAY ALONG WITH AFFIDAVIT. THE REASONS GIVEN FOR NON FIL ING THE APPEAL IS THAT THE ASSESSEE WAS ON THE BONAFIDE BELIEF THAT APPEAL LIES AGAINST THE ORDER OF CIT IS ONLY AFTER THE A.O. PASSED CONSEQUE NTIAL ORDER U/S 143(3) R.W.S. 263 OF THE ACT. THE A.R. FURTHER SUBMITTED THAT IN PARAGRAPH NO.11 OF THE CIT ORDER, THE LD. CIT DIRECTED THAT T HE ASSESSMENT ORDER WOULD BE MODIFIED AFTER GIVING AN OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. AS PER THE ORDER OF THE CIT, THERE WAS NO DEMAND VISUALISED. THE ASSESSEE WAS UNDER THE BONAFIDE BELIEF THAT THE PROCEEDINGS WOULD ATTAIN FINALITY ONLY IN THE EVENT OF THE ASSESSMENT ORDER BEING MODIFIED BY THE A.O. U/S 143(3) R.W.S. 263 OF THE ACT. AS P ER THE DIRECTIONS OF CIT, THE A.O. HAS COMPLETED THE ASSESSMENT U/S 143( 3) R.W.S 263 OF THE ACT ON 31.3.2014. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AGAINST THE ORDER PASSED BY THE A.O. ON 29.4.2014. THE CIT(A) VIDE ORDER DATED 15.4.2015 DISMISSED THE APPEAL FILED BY THE ASSESSEE BY HOLDING THAT HE CANNOT DECIDE THE ISSUE IN APPEAL A S THE ASSESSING ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 5 OFFICER COMPLETED THE ASSESSMENT AS PER THE DIRECTI ONS OF THE CIT VIJAYAWADA WHO IS HOLDING EQUAL RANK. WITH THESE OB SERVATIONS, THE CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE F OR STATISTICAL PURPOSES. THE A.R. FURTHER SUBMITTED THAT THE ASSE SSEE AFTER RECEIPT OF THE CIT(A) ORDER CONSULTED EXPERIENCED TAX CONSULTA NT, WHO IN TURN ADVISED THE ASSESSEE TO FILE APPEAL AGAINST THE ORD ER OF CIT U/S 263 OF THE ACT. THE ASSESSEE WITHOUT FURTHER LOSS OF TIME HAS TAKEN NECESSARY STEPS AND FILED THE APPEAL BEFORE ITAT ON 9.6.2015. THEREFORE, THERE IS A REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT. IT IS FURTHER SUBMITTED THAT THE AS SESSEE WAS UNDER THE BONAFIDE BELIEF THAT THE APPEAL AGAINST THE ORDER U /S 263 OF THE ACT LIES ONLY AFTER CONSEQUENTIAL ORDER PASSED BY THE A.O. HENCE, THE REASONS GIVEN BY THE ASSESSEE ARE BONAFIDE. ACCORDINGLY, TH E DELAY MAY BE CONDONED. 4. ON THE OTHER HAND, THE LD. D.R. VEHEMENTLY OPPOS ED THE CONDONATION OF DELAY. THE D.R. FURTHER ARGUED THAT THERE IS A INORDINATE DELAY OF 764 DAYS IN FILING THE APPEAL AND ASSESSEE HAS NOT GIVEN ANY VALID REASON FOR SUCH A HUGE DELAY. THE ASSESSEE ST ATED IN HIS AFFIDAVIT THAT HE WAS UNDER THE BONAFIDE BELIEF THAT NO APPEA L LIES AGAINST THE ORDER U/S 263 OF THE ACT. ON PERUSAL OF THE ORDER U/S 263 OF THE ACT ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 6 PASSED BY THE CIT, THE ASSESSEE WAS REPRESENTED BY AN EXPERIENCED CHARTERED ACCOUNTANT WHO IS AWARE OF THE PROCEEDING S BEFORE THE CIT. THEREFORE, THE REASON GIVEN BY THE ASSESSEE THAT SI NCE THERE IS NO DEMAND VISUALIZED AGAINST THE ORDER OF THE CIT U/S 263 OF THE ACT AND HENCE, NO NEED TO FILE APPEAL CANNOT BE ACCEPTABLE. THE LD. D.R. FURTHER SUBMITTED THAT IF THE DELAY IS CONDONED FOR THESE REASONS, THEN THERE IS NO MEANING FOR THE TIME LIMITS PRESCRIBED UNDER THE ACT FOR FILING OF THE APPEALS. THEREFORE, REQUESTED TO DISMISS THE APPEAL FILED BY THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MA TERIALS AVAILABLE ON RECORD. ADMITTEDLY IN THIS CASE, THER E IS A DELAY OF 764 DAYS IN PRESENTING THE APPEAL BEFORE THE ITAT. THE ASSE SSEE CONTENDED THAT HE HAD A SUFFICIENT REASON FOR DELAY IN FILING THE APPEAL WITHIN THE TIME PRESCRIBED UNDER THE ACT, THEREFORE, REQUESTED TO C ONDONE THE DELAY IN FILING THE APPEAL. ON PERUSAL OF THE CONDONATION P ETITION ALONG WITH AFFIDAVIT FILED BY THE ASSESSEE, WE NOTICED THAT TH E ASSESSEE STATED IN HIS AFFIDAVIT THAT HE WAS UNDER THE BONAFIDE BELIEF THA T NO APPEAL REQUIRED TO BE FILED IMMEDIATELY AFTER RECEIPT OF THE ORDER OF THE CIT U/S 263 OF THE ACT, FOR THE REASON THAT THE CIT HAS DIRECTED T HE A.O. TO MODIFY THE ASSESSMENT ORDER AFTER GIVING AN OPPORTUNITY OF BEI NG HEARD TO THE ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 7 ASSESSEE. SINCE THERE IS NO DEMAND AS PER THE ORDE R OF THE CIT, HE WAS UNDER THE BONAFIDE BELIEF THAT APPEAL LIES ONLY AFT ER CONSEQUENTIAL ORDER HAS BEEN PASSED BY THE A.O., THEREFORE, REQUESTED T O CONDONE THE DELAY IN FILING THE APPEAL. 6. THE TRIBUNAL HAS INHERENT POWERS U/S 253(5) OF T HE ACT TO ADMIT THE APPEAL BEYOND THE TIME, IF IT IS SATISFIED THAT THERE IS A SUFFICIENT REASON FOR THE ASSESSEE FOR NOT PRESENTING THE APPE AL IN TIME. BUT, IT IS THE DUTY OF THE ASSESSEE TO PROVE THAT HE HAS SUFFI CIENT REASONS FOR NOT PRESENTING THE APPEAL WITHIN THE TIME ALLOWED UNDER THE ACT BEYOND DOUBT. IN THE PRESENT CASE ON HAND, FROM THE RECOR DS IT IS OBSERVED THAT THE ASSESSEE HAS FILED APPEAL AGAINST THE CONSEQUEN TIAL ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 263 OF THE ACT. SINCE T HE CIT(A) DISMISSED THE ASSESSEES APPEAL FOR THE REASON THAT HE CANNOT ENTERTAIN THE APPEAL FILED BY THE ASSESSEE AS THE A.O. HAS PASSED CONSEQ UENTIAL ORDER AS PER THE DIRECTIONS OF THE CIT, THE ASSESSEE HAS TAKEN A LTERNATIVE REMEDY ONCE HE FAILED TO SUCCEED IN HIS ATTEMPT BEFORE THE CIT(A) ON MERITS AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3) OF THE ACT. THEREFORE, FROM THIS CONDUCT OF THE ASSESSEE, WE ARE OF THE VI EW THAT THE ASSESSEE IS TRYING TO REVIEW THE CONCLUDED PROCEEDINGS BY FI LING THIS APPEAL. THE ASSESSEE STATED THAT HE WAS UNDER THE BONAFIDE BELI EF THAT NO APPEAL ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 8 LIES AGAINST THE ORDER OF THE CIT U/S 263 OF THE AC T, BECAUSE THERE IS NO DEMAND VISUALIZED AS PER THE ORDER OF THE CIT. WE DO NOT SEE ANY MERITS IN THE CONTENTION OF THE ASSESSEE FOR THE RE ASON THAT THE ASSESSEE HAS BEEN REPRESENTED BY AN EXPERT CHARTERED ACCOUNT ANT BEFORE THE CIT IN THE PROCEEDINGS U/S 263 OF THE ACT, THEREFORE, T HE CONTENTION THAT NO APPEAL LIES AGAINST THE ORDER U/S 263 OF THE ACT IS NOT ACCEPTABLE. THOUGH JUDICIAL FORUMS IN THIS COUNTRY CONSISTENTLY HELD THAT PRAGMATIC APPROACH IS REQUIRED IN CONDONING THE DELAY IN FILI NG THE APPEAL, WHEREVER SUBSTANTIAL MERIT IS INVOLVED, IT IS ON TH E PART OF THE ASSESSEE TO PROVE BEYOND DOUBT THAT THERE IS A REASONABLE AN D SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THE TIME PRESC RIBED UNDER THE ACT. IN THE PRESENT CASE ON HAND, THE ASSESSEE COULD NOT BROUGHT ON RECORD ANY SUFFICIENT AND VALID REASONS FOR CONDONING THE DELAY OF 764 DAYS IN FILING THE APPEAL. THE DELAY OF 764 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL HAS OCCURRED SOLELY DUE TO THE NEGLIGENCE OF THE ASSESSEE AND ALSO WHICH IS NOTHING BUT AN ATTEMPT TO REVIEW THE CONCLUDED PROCEEDINGS BY FILING FRESH APPEAL. IF SUCH A HUGE DELAY OF 764 DAYS IS CONDONED FOR THESE REASONS, THE PURPOSE OF PRESCRIB ING TIME LIMIT FOR FILING THE APPEAL BY THE STATUTE WOULD BE DEFEATED. ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 9 7. COMING TO THE CASE LAWS RELIED UPON BY THE ASSES SEE. THE ASSESSEE RELIED UPON THE COORDINATE BENCH DECISION OF ITAT, VISAKHAPATNAM IN THE CASE OF VIRUPA TOWNSHIP VS. AC IT 614 & 615/VIZAG/2013 DATED 7.3.2014 AND SUBMITTED THAT UN DER SIMILAR FACTS AND CIRCUMSTANCES, THE ITAT CONDONED THE DELAY IN F ILING THE APPEAL. WE HAVE GONE THROUGH THE CASE LAW RELIED UPON BY THE ASSESSEE IN THE LIGHT OF THE FACTS OF THE PRESENT CASE AND FIND THA T THE FACTS OF THE CASE RELIED UPON BY THE ASSESSEE IS NOT APPLICABLE TO TH E CASE ON HAND. THE CASE BEFORE THE COORDINATE BENCH WAS THAT THE ISSUE ON MERIT WAS SQUARELY COVERED BY THE DECISION IN ASSESSEES OWN CASE FOR THE EARLIER PERIOD. UNDER THOSE CIRCUMSTANCES, THE BENCH HELD T HAT SINCE THE ISSUE IS COVERED BY THE ASSESSEES OWN CASE FOR EARLIER P ERIOD, THE TECHNICALITIES SHOULD NOT COME IN THE WAY OF RENDER ING SUBSTANTIAL JUSTICE. THEREFORE, BY FOLLOWING THE DECISION OF HO NBLE BOMBAY HIGH COURT, ACCEPTED THE PLEA OF THE ASSESSEE AND CONDON ED THE DELAY IN FILING THE APPEAL. IN THE PRESENT CASE ON HAND, TH E ASSESSEE HAS FAILED TO MAKE OUT HIS CASE THAT HE HAS SUBSTANTIAL MERITS IN HIS CASE. THE ASSESSEE ALSO FAILED TO PROVE THAT HE HAS A SUFFICI ENT REASON FOR NOT FILING THE APPEAL IN TIME. THEREFORE, WE REJECT THE CASE LAW RELIED UPON BY THE ASSESSEE. ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 10 8. THE ITAT, CHENNAI BENCH THIRD MEMBER DECISION IN THE CASE OF JCIT VS. TRACTORS & FARM EQUIPMENTS LTD. 104 ITD 14 9 CONSIDERED SIMILAR ISSUE AND HELD AGAINST THE ASSESSEE AS FOLL OWS: THE DELAY CANNOT BE CONDONED SIMPLY BECAUSE THE A PPELLANT'S CASE IS HARD AND CALLS FOR SYMPATHY OR MERELY OUT OF BENEVO LENCE TO THE PARTY SEEKING RELIEF. IN GRANTING THE INDULGENCE AND COND ONING THE DELAY IT MUST BE PROVED BEYOND THE SHADOW OF DOUBT THAT THE APPELLANT WAS DILIGENT AND WAS NOT GUILTY OF NEGLIGENCE WHATSOEVE R. THE SUFFICIENT CAUSE WITHIN THE CONTEMPLATION OF THE LIMITATION PR OVISION MUST BE A CAUSE WHICH IS BEYOND THE CONTROL OF THE PARTY INVO KING THE AID OF THE PROVISIONS. WHERE NO NEGLIGENCE, NOR INACTION, OR W ANT OF BONA FIDES CAN BE IMPUTED TO THE APPELLANT A LIBERAL CONSTRUCTION OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTIAL JUSTICE. SE EKERS OF JUSTICE MUST COME WITH CLEA6 HANDS. THE ASSESSEE JUSTIFIED THE D ELAY ONLY WITH REFERENCE TO THE AFFIDAVIT OF A DIRECTOR OF THE COM PANY. IN THE SAID AFFIDAVIT HE STATED THAT THE CIT(A)'S ORDER WAS MIS PLACED AND FORGOTTEN. IT WAS FOUND WHILE SORTING OUT THE UNWANTED PAPERS. THEREAFTER STEPS WERE TAKEN FOR THE PREPARATION OF THE APPEAL. CONSE QUENTLY THE DELAY WAS CAUSED. THIS CLEARLY SHOWS THAT THE DELAY WAS DUE T O THE NEGLIGENCE AND INACTION ON THE PART OF THE ASSESSEE. THE ASSES SEE COULD HAVE VERY WELL AVOIDED THE DELAY BY THE EXERCISE OF DUE CARE AND ATTENTION. THERE EXISTS NO SUFFICIENT AND GOOD REASON FOR THE DELAY OF 310 DAYS.VEDABAI ALIAS VAIJAYANATABAI EABURAO PAT/I VS . SHANTARAM BABURAO PAT/I (2002) 173 CTR (SC) 300 (2002) 253 IT R 798 (SC) AND RAMLAL VS. REWA COALFIELDS LTD. AIR 1962 SC 361 APPLIED. 9. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE AND ALSO APPLYING THE RATIOS OF THE COORDINATE BENCH DECISIO N, WE ARE OF THE VIEW THAT THE REASON GIVEN BY THE ASSESSEE DOES NOT CONS TITUTE A SUFFICIENT AND VALID REASON FOR CONDONATION OF 764 DAYS DELAY IN FILING THE APPEAL. THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABL E. THEREFORE, WE DISMISS THE APPEAL FILED BY THE ASSESSEE AS NOT MAI NTAINABLE. ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 11 10. SINCE, WE DISMISSED THE APPEAL FILED BY THE ASS ESSEE AS NOT MAINTAINABLE, THE ISSUES ON MERIT HAVE NOT BEEN ADJ UDICATED AT THIS POINT OF TIME, AS IT IS PURELY ACADEMIC IN NATURE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ITA NO.257/VIZAG/2015: 12. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF CIT(A) VIJAYAWADA DATED 15.4.2015 AND IT PERTAINS T O THE ASSESSMENT YEAR 2008-09. 13. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAS FILED THIS APPEAL AGAINST THE CONSEQUENTIAL ORDER PASSED BY TH E ASSESSING OFFICER U/S 143(3) R.W.S. 263 OF THE ACT. THE CIT(A) DISMI SSED THE APPEAL FILED BY THE ASSESSEE BY HOLDING THAT THE A.O. HAS MADE A DDITIONS BASED ON THE DIRECTIONS OF THE CIT. SINCE, THE CIT IS OF EQ UAL RANK WITH CIT(A), THE CIT(A) DECLINED TO ENTERTAIN THE APPEAL FILED B Y THE ASSESSEE. AT THE TIME OF HEARING, THE LD. A.R. FOR THE ASSESSEE SUBM ITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE FOR STATISTICAL PURPOSE. THE LD. A.R. FURTHER SUBMITTED THAT AS PER THE PROV ISIONS OF SECTION 246A OF THE ACT, ANY ORDER PASSED U/S 143(3) OF THE ACT, THE FIRST APPEAL LIES WITH THE CIT(A), WHETHER OR NOT SAID ORDER IS PASSE D AS PER THE ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 12 DIRECTIONS OF THE CIT U/S 263 OF THE ACT. THE D.R. HAS FAIRLY ACCEPTED THAT THE FIRST APPEAL ALWAYS LIES WITH CIT(A) AGAIN ST THE ORDER PASSED BY THE A.O. U/S 143(3) R.W.S. 263 OF THE ACT. 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIALS AVAILABLE ON RECORD. THE CIT(A) HAS DISMISSED THE A PPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE A.O. U/S 1 43(3) R.W.S. 263 OF THE ACT, FOR THE REASON THAT THE A.O. HAS PASSED TH E CONSEQUENTIAL ORDER AS PER THE DIRECTIONS OF THE CIT U/S 263 OF THE ACT . SINCE THE CIT IS OF EQUAL RANK OF THE CIT(A), HE CANNOT ENTERTAIN THE A PPEAL FILED BY THE ASSESSEE. WE DO NOT SEE ANY MERITS IN THE ARGUMENT S OF THE CIT(A) FOR THE REASON THAT AS PER THE PROVISIONS OF SECTION 24 6A OF THE ACT, ANY ORDER PASSED U/S 143(3) OF THE ACT, WHETHER OR NOT SAID ORDER WAS PASSED AS PER THE DIRECTIONS OF CIT, UNDER SECTION 263 OF THE ACT, THE FIRST APPEAL ALWAYS LIES WITH THE CIT(A). THEREFORE , WE ARE OF THE VIEW THAT THE CIT(A) HAS ERRED IN NOT ADJUDICATING THE A PPEAL ON MERITS. HENCE, WE SET ASIDE THE ORDER PASSED BY THE CIT(A) AND RESTORE THE FILE TO CIT(A) TO ADJUDICATE THE ISSUES ON MERITS. ITA NO.256&257/VIZAG/2015 N. GANGADHARA BOSE, VIJAYAWADA 13 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 27 TH MAY16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 27.05.2016 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SRI N. GANGADHAR BOSE, D.NO.27-3 8-61, M.G. ROAD, VIJAYAWADA 2. / THE RESPONDENT THE ITO, WARD-2(1), VIJAYAWADA 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM