ASHOK KUMAR MITTAL, NASIRABAD V. PR. CIT, AJMER

ITA 301/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1900 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 23-09-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A. S. MEHRA
• Keywords: Revision of order; Income from undisclosed sources; Corroborative evidences; Assessment record; Set aside
• Section: 68; 263; 271(1)(c); 144; 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 301/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2015-16 SH. ASHOK KUMAR MITTAL 2224 2224, FULA GANJ NASIRABAD CUKE VS. THE PCIT, AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AVBPM9529N VIHYKFKHZ@ APPE LLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. MUKESH KHANDELWAL JKTLO DH VKSJ LS @ REVENUE BY : SH. A. S. MEHRA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/11/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/12/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LD. PR.CIT, AJMER U/S 263 DATED 28.02.2020 PERTAINI NG TO A.Y 2015-16 WHEREIN THE MODIFIED GROUNDS OF APPEAL TAKEN BY THE ASSESSE E READS AS UNDER:- 1. THAT THE ORDER PASSED BY THE LD. PR. CIT IS BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT VERIFYING THE VITAL FACT T HAT THE LD. AO HAD PASSED THE ORDER AFTER DUE APPLICATION OF MIND AND THERE WAS NO GROUND TO CONSIDER THE ORDER OF THE LD. AO TO BE ERRONEOU S AND PREJUDICIAL TO THE INTEREST OF REVENUE. 2 THAT THE ORDER PASSED BY THE LD. PR. CIT IS BAD I N LAW ALSO ON THE SCORE THAT THE APPELLANT WAS IN APPEAL AGAINST THE ORDER OF THE LD. AO BEFORE THE LD. CIT(APPEALS), AJMER TO WHOM COTERMI NUS POWERS OF AO WAS LYING AND THE PR. CIT WAS INCOMPETENT TO PASS ORDER U/S 263 ON A MATTER WHICH WAS PENDING WITH ANOTHER OFFICER OF T HE SAME RANK. ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 2 3 THAT THE LD. PR. CIT HAS PASSED THE INSTANT ORDER IN VIOLATION TO THE PROVISIONS OF CLAUSE (C) OF EXPLANATION 1 TO SUB S ECTION 1 OF SECTION 263 OF THE INCOME TAX ACT, 1961 EVEN AFTER HAVING INFO RMATION THAT THE APPELLANT WAS IN APPEAL BEFORE THE LD. CIT(APPEALS ) ON THE ISSUE FOR WHICH THE LD. PR. CIT INITIATED ACTION U/S 263 OF THE INCOME TAX ACT, 1961. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY IN FILING THE PRESENT APPEAL BY 143 DAYS. IN THIS REGARD, THE LD. AR HAS SUBMITT ED AS UNDER:- THE ORDER U/S 263 OF THE INCOME TAX ACT, 1961 WAS PASSED BY THE LD. CIT ON 28.02.2020 AND SAME WAS RECEIVED BY THE APPE LLANT ON 04.03.2020. AS PER PROVISIONS OF SECTION 253(3) THE APPEAL AGAINST SUCH ORDER WAS TO BE SUBMITTED BEFORE THE HON'BLE B ENCH ON OR BEFORE 03.05.2020. HOWEVER DUE TO LOCKDOWN IN THE COUNTRY IMPOSED ON 25.03.2020 WHICH REMAINED UPTO 03.05.2020 THE APPEA L COULD NOT BE FILED. FURTHER THE HON'BLE MINISTRY OF LAW AND JUST ICE, GOVT. OF INDIA VIDE THE TAXATION AND OTHER LAWS (RELAXATION OF CER TAIN PROVISIONS) ORDINANCE 2020 DATED 31.03.2020 ALLOWED TIME UP TIL L 30.06.2020 FOR FILING OF APPEAL. FURTHER THE HON'BLE MINISTRY OF F INANCE, GOVT. OF INDIA VIDE ITS NOTIFICATION DATED 24.06.2020 ISSUED VIDE NO. S.O. 2033(E) ALLOWED TIME UP TILL 31ST MARCH, 2021 FOR FILING TH E APPEAL AS PER POWERS VESTED AS PER SECTION 3(1) OF THE ABOVE REFE RRED ORDINANCE. THEREFORE THE APPEAL FILED BY THE APPELLANT IS WITH IN TIME SO ALLOWED AND HENCE DELAY OF 143 DAYS AS ALLEGED MAY KINDLY B E CONDONED. 3. AFTER HEARING BOTH THE PARTIES AND CONSIDERING T HE PREVAILING SITUATION IN THE CONDITION ON ACCOUNT OF COVID-19 PANDEMIC AND T HE RELAXATION SO PROVIDED IN FILING THE APPEAL, THE DELAY IN FILING THE PRESE NT APPEAL IS CONDONED AND THE APPEAL IS ADMITTED FOR ADJUDICATION. ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 3 4. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE APPELLANT IS AN AGENT FOR PROVIDING VARIOUS TYPES OF SERVICES TO INTERESTED PARTIES CONNECTED WITH TRANSPORT DEPARTMENT OF THE GOVERNME NT OF THE STATE, WHICH INTER ALIA INCLUDES GETTING ROAD PERMITS, ROUTE PER MITS, DRIVING LICENSES, FITNESS CERTIFICATES ETC. FOR THE VEHICLES. IN THIS PROCESS, HE GETS CASH/ CHEQUES FROM PARTIES OUT OF WHICH MAJOR PART PERTAI NS TO PAYMENT OF FEES TO THE TRANSPORT DEPARTMENT. THE APPELLANT DEPOSITS SU CH CASH/ CHEQUE IN HIS ACCOUNT AND MAKES PAYMENT OF SUCH FEES TO THE DEPAR TMENT THROUGH CHEQUE/ ONLINE PAYMENTS. SOME PART OF THE RECEIPTS FROM PARTIES IS RETAINED BY THE APPELLANT AS HIS SERVICE CHARGES. IN THE RET URN, THE APPELLANT HAD SHOWN HIS NATURE OF BUSINESS AS TRADING - OTHERS' AND HAD DECLARED THAT HE HAD RECEIVED GROSS INCOME OF RS. 6,40,800/- AND HAD OFFERED A SUM OF RS. 1,40,300/- AS NET INCOME. THE CASE WAS SELECTED FOR SCRUTINY AND VARIOUS NOTICES WERE ISSUED BY THE LD. AO BUT SAME WERE NOT COMPLIED WITH DUE TO ONE OR THE OTHER REASON. THE LD. AO FOR COMPLETING THE ASSESSMENT COLLECTED BANK STATEMENTS OF THE APPELLANT FROM RESPECTIVE BA NK AND FOUND THAT THE APPELLANT HAD DEPOSITED CASH OF RS. 84,47,450/- IN HIS BANK ACCOUNTS DURING THE YEAR UNDER CONSIDERATION. BASED ON NON COMPLIAN CES, THE LD. AO OPINED THAT SUCH CASH DEPOSIT ENTRIES ARE TREATED AS UNEXP LAINED. HOWEVER, HE RECORDED A VERY CATEGORICAL FINDING THAT THE ASSESS EE MADE VARIOUS DEBIT ENTRIES THROUGH CHEQUES OR TRANSFER AND BASED ON TH IS FACT, HE ASSESSED A SUM OF RS. 8,44,745/- BEING 10% OF CASH DEPOSITS AS NET INCOME OF THE ASSESSEE. THE SAID ORDER OF THE LD. AO PASSED U/S 1 44 R.W.S. 143(3) OF THE ACT WAS CHALLENGED IN APPEAL BEFORE THE LD. CIT (AP PEALS), AJMER AND IS PENDING AS OF NOW. THE LD. PR, CIT, AJMER EXAMINED THE ASSESSMENT RECORDS AND ALLEGED THAT AS PER OPINION OF THE LD. AO, THE WHOLE AMOUNT OF CASH DEPOSIT WAS TO BE TREATED AS UNEXPLAINED U/S 68 WHE REAS HE HAD ASSESSED THE INCOME ONLY AT 10% OF THE CASH SO DEPOSITED AND HENCE THE ORDER HAS BEEN HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF REVENUE. HENCE ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 4 BY THE IMPUGNED ORDER, HE HAS SET ASIDE THE ORDER O F THE LD. AO AND INSTRUCTED FOR MAKING FRESH ORDER IN THE MANNER PRE SCRIBED BY HIM. 5. IT WAS SUBMITTED BY THE LD AR THAT IT IS QUITE APPARENT FROM THE ORDER OF THE LD. AO THAT THERE WERE VARIOUS WITHDRAWALS ALSO IN THE VARIOUS BANK ACCOUNTS OF THE APPELLANT AND HENCE HE ARRIVED AT A SATISFACTION THAT WHOLE AMOUNT OF CASH DEPOSIT CANNOT BE TREATED AS INCOME AND HE APPLIED 10% OF SUCH CASH DEPOSIT FOR ASSESSING THE NET INCOME OF T HE APPELLANT. UNDER THESE CIRCUMSTANCES, IT CANNOT BE PRESUMED THAT THE ORDER PASSED BY THE LD. AO WAS ERRONEOUS SO FAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. IT SEEMS THAT THE LD. PR. CIT HAS ONLY GONE ON THE WORDINGS OF THE LD. AO WHICH HE HAS MENTIONED ON PAGE 2 (LAST PARA) AND PAGE 3 (TOP LINE) BUT DID NOT CARE TO SEE THAT IN THE BANK ACCOUNTS VARIOUS DEBITS ARE ALSO APPEARING AND THEREFORE WHOLE CASH DEPOSIT CANNOT BE ASSESSED AS UNDISCLOSED INCOME. T HE AO HAS PASSED THE ORDER AFTER CAREFUL EXAMINATION OF THE BANK ACCOUNT S. 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 RS. 6,40,800/- AS HIS GROSS RECEIPTS WHICH WAS HIS GROSS COMMISSION AND AFTER DEDUCTING EXPENS ES FOR RUNNING HIS BUSINESS, HE HAS OFFERED RS. 1,40,300 AS HIS INCOME FROM THIS BUSINESS, AGAINST WHICH THE LD. AO HAS ESTIMATED THE INCOME AT RS. 8, 44,745/-. HENCE THE ORDER PASSED BY THE LD. PR. CIT IS BAD IN LAW AND IS REQU IRED 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. (26 8 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 RS. 8.80 C RORES. THE HON'BLE MUMBAI HIGH COURT QUASHED THE ORDER BY HOLDING THAT FROM T HE ORDER OF THE LD. AO, IT WAS QUITE VERIFIABLE THAT THE LD. AO HAD EXAMINED T HE DOCUMENTS AVAILABLE WITH HIM BEFORE PASSING THE ORDER. IN THE INSTANT CASE A LSO, IT IS DISCERNIBLE FROM THE ORDER OF THE LD. AO THAT HE HAD BANK STATEMENTS OF THE APPELLANT WHEREFROM HE ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 5 VERIFIED THAT THERE WERE VARIOUS DEBIT ENTRIES ALSO IN THE BANK ACCOUNT AND HENCE IT CANNOT BE SAID THAT THE LD. AO HAD PASSED THE ORDER WITHOUT APPLICATION OF MIND. IT IS THEREFORE REQUESTED THAT THE PRESENT ORDER OF THE LD. PR. CIT MAY PLEASE BE QUASHED. 6. IT WAS FURTHER SUBMITTED THAT THE MAIN ISSUE IN THE ASSESSMENT ORDER PASSED BY THE LD. AO WAS ABOUT CASH DEPOSIT IN THE BANK ACCOUNTS OF THE APPELLANT AND THE ESTIMATION OF INCOME HAS BEEN CHA LLENGED BEFORE THE LD. CIT(APPEALS). AFTER PREFERRING SUCH APPEAL, THE LD. CIT (APPEALS) IS VESTED WITH COTERMINOUS POWERS OF AO AND HE IS HAVING POWERS TO REDUCE AND ENHANCE THE ASSESSMENT. THEREFORE EXERCISE OF POWERS BY PR. CIT UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 ON THE ISSUE WHICH IS SUBJECT MATTER OF APPEAL BEFORE AN OFFICER OF EQUAL RANK IS NOT CORRECT. IT IS THEREFO RE SINCERELY REQUESTED THAT THE ORDER PASSED BY THE LD. PR. CIT IS ILLEGAL AND MAY KINDLY BE QUASHED. 7. PER CONTRA, THE LD. DR SUBMITTED THAT DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE NEITHER ATTENDED TO THE V ARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER NOR ANY WRITTEN SUBMISSIONS WERE FILED AND EVEN THE ASSESSEE FAILED TO RESPOND TO THE FINAL SHOW-CAUSE NOTICE IS SUED BY THE ASSESSING OFFICER DATED 30.11.2017. IT WAS SUBMITTED THAT THE ASSESSI NG OFFICER ACCORDINGLY COMPLETED THE ASSESSMENT U/S 144 READ WITH SECTION 143(3) CONSIDERING THAT THE CASH DEPOSITS TOTALING TO RS. 84,47,450/- AS UN EXPLAINED INCOME FROM UNDISCLOSED SOURCES. IT WAS SUBMITTED THAT ONCE THE ASSESSING OFFICER HAS REACHED SUCH A CONCLUSION THEN THE ENTIRE AMOUNT OF CASH DEPOSIT SHOULD HAVE BEEN BROUGHT TO TAX U/S 68 OF THE ACT. HOWEVER, THE ASSESSING OFFICER HAS MADE THE ADDITION ONLY TO THE EXTENT OF 10% OF SUCH CASH DEPOSITS WHICH HAS RENDERED THE ASSESSMENT ORDER ERRONEOUS IN SO FAR A S PREJUDICIAL TO THE INTEREST OF THE REVENUE. IT WAS FURTHER SUBMITTED THAT THE T AX WAS ALSO CALCULATED AT NORMAL RATE INSTEAD OF 30% AS PER SECTION 115BBE OF THE ACT. ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 6 8. IT WAS FURTHER SUBMITTED BY THE LD DR THAT DURIN G THE REVISIONARY PROCEEDINGS, THE ASSESSEE WAS ISSUED A SHOW CAUSE A ND HE SUBMITTED THAT HIS MAIN SOURCE OF INCOME OF THE ASSESSEE WAS FROM SERV ICES/COMMISSION IN RESPECT OF RTO SERVICES TO TRANSPORTERS. HOWEVER, N O DOCUMENTARY EVIDENCE HAS BEEN FILED IN SUPPORT OF HIS CONTENTION IN TERM S OF RECEIPT AND PAYMENT IN RELATION TO SUCH SERVICES. REGARDING THE CONTENTIO N OF THE ASSESSEE 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. C IT 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 EXERCIS E 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 OPPORTUN ITY TO THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. WE REFER TO THE RELEVANT FINDINGS OF TH E ASSESSING OFFICER AND THE SAME READS AS UNDER: 9. DURING THE ASSESSMENT PROCEEDINGS, ON THE PERUS AL 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 RS. 84,47,450/- AND MADE VARIOUS DEBIT ENTRIES TO VARIOUS PERSONS/ENTITIES THROUGH CHEQUES OR TRANSFER. IN T HE ABSENCE OF ANY REPLY/DETAIL AND VERIFICATION, SUCH CASH DEPOSIT E NTRIES ARE TREATED AS UNEXPLAINED. HENCE, I HOLD THAT ASSESSEE HAD DEPOS ITED CASH OF RS. 84,47,450/- IN HIS BANK ACCOUNT OUT OF HIS INCOME FROM UNDISCLOSED SOURCES. ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 7 IN VIEW OF THE ABOVE DISCUSSION AND TAKING A REASO NABLE VIEW, I MADE AN ADDITION OF RS. 8,44,745/- (10% OF TOTAL CASH DEPO SIT I.E. RS. 84,47,450/) TO THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. PENALTY PROCEEDINGS U/S 271(1)(C) ARE BEING INITIA TED SEPARATELY FOR CONCEALING AND FURNISHING INACCURATE PARTICULARS O F INCOME. 10. WE FIND THAT THE ASSESSING OFFICER HAS RECORDED A FINDING THAT CASH DEPOSIT IN THE ASSESSEES BANK ACCOUNT IS OUT OF IN COME FROM UNDISCLOSED SOURCES AND THEREAFTER, HE HAS HELD THAT TAKING A R EASONABLE VIEW, 10% OF SUCH DEPOSITS ARE TO BE BROUGHT TO TAX AS INCOME FROM OT HER SOURCES. ONCE HE HAS ARRIVED AT A FINDING THAT THE WHOLE OF THE DEPOSITS ARE FROM UNDISCLOSED SOURCES AND REMAIN UNEXPLAINED AND THEN INSTEAD OF BRINGING THE WHOLE OF SUCH DEPOSITS TO TAX AND BRINGING ONLY 10% OF SUCH DEPOS ITS TO TAX IS CLEARLY ERRONEOUS. FURTHER, THE BASIS OF ARRIVING AT 10% O F SUCH DEPOSITS AS INCOME HAS NOT BEEN SPELT OUT AND THEREFORE, THERE IS CLEA RLY AN INCONSISTENCY BETWEEN THESE FINDINGS AND ARRIVING AT THE TAXABLE INCOME A ND THE ORDER SO PASSED IS CLEARLY ERRONEOUS AND PREJUDICIAL TO THE INTEREST O F THE REVENUE. GIVEN THAT THE ASSESSEE HAS FAILED TO RESPOND TO THE SHOW-CAUSE IS SUED BY THE AO AND THERE WAS NO EXPLANATION/SUBMISSIONS FILED BY THE ASSESSE E BEFORE THE AO, IT WOULD BE WRONG TO ASSUME THAT THE AO HAD CONSIDERED THE N ATURE AND IMPACT OF THE DEBIT ENTRIES SO REFLECTED IN THE BANK STATEMENTS W HILE ARRIVING AT THE TAXABLE INCOME. AT THE SAME TIME, CONSIDERING THE CONTENTI ON OF THE LD AR THAT MAIN SOURCE OF INCOME OF THE ASSESSEE WAS FROM SERVICES/ COMMISSION IN RESPECT OF RTO SERVICES TO TRANSPORTERS AND IN THE BANK ACCOUN TS, THERE ARE VARIOUS DEBIT ENTRIES IN TERMS OF PAYMENTS IN RELATION TO SUCH SE RVICES WHICH CAN BE DULY EXPLAINED AND THEREFORE WHOLE CASH DEPOSIT CANNOT B E ASSESSED AS UNDISCLOSED INCOME, WE DIRECT THE AO TO VERIFY SUCH DEBIT ENTRI ES AND CONSIDER THE EXPLANATION OF THE ASSESSEE AS MAY BE SUBMITTED BES IDES THE CREDIT ENTRIES IN ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 8 THE BANK ACCOUNTS, AND TAKING INTO CONSIDERATION TH E INCOME ALREADY DISCLOSED IN THE RETURN OF INCOME, ARRIVE AT THE TAXABLE INCO ME 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 A PPEAL HAS BEEN PREFERRED AGAINST THE ASSESSMENT ORDER BEFORE THE LD CIT(A) A ND THEREFORE, THE MATTER IS BEYOND THE JURISDICTION OF THE LD PR CIT U/S 263, W E FIND THAT THOUGH THERE IS NO DISPUTE THAT THE ASSESSEE HAS PREFERRED AN APPEAL B EFORE 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 ASSE SSEE DIDNT 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 SH ALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MATTERS AS H AD NOT BEEN CONSIDERED AND DECIDED IN AN APPEAL. IN THE INSTANT CASE, WHER E THE APPEAL HAS NOT EVEN BEEN ADMITTED FOR ADJUDICATION BY THE LD CIT(A), TH E QUESTION OF SUBJECT MATTER OF APPEAL BEEN CONSIDERED AND DECIDED IN SUCH APPEA L DOESNT ARISE AND THEREFORE, THE DOCTRINE OF MERGER OF THE ASSESSMENT ORDER WITH THAT OF THE APPELLATE ORDER DOESNT ARISE FOR CONSIDERATION AND THUS, IN THE INSTANT CASE, THERE IS NO BAR ON EXERCISE OF JURISDICTION OF LD. PR CIT U/S 263 OF THE ACT. THE GROUND NO. 2 AND 3 ARE THUS DISMISSED. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISPOSED O FF IN LIGHT OF AFORESAID DIRECTIONS. ITA NO. 301/JP/2020 SH. ASHOK KUMAR MITTAL VS. PCIT, AJMER 9 ORDER PRONOUNCED IN THE OPEN COURT ON 07/12/2020. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/12/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. ASHOK KUMAR MITTAL, NASIRABAD 2. IZR;FKHZ@ THE RESPONDENT- THE PCIT, AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 301/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR