BIMAL BHATT, MUMBAI V. ACIT.-11(2), MUMBAI

ITSSA 39/MUM/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2896 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-05-2015
• Assessment Year: misc
• Appeal Filed On: 28-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Document seized; Principle of natural justice; Bonafide belief; Block assessment; Right to appeal; Condonation of delay; Documents seized
• Section: 69C; 132; 154

Judgement Text

D B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER I.T.(SS) A NO.39 /MUM/2011 (BLOCK PERIOD 01-04-1986 TO 11-12-1995) MR. BIMAL BHATT, 32, RPI HOUSE, 4 TH FLOOR, JANMABHOOMI MARG, FORT, MUMBAI 400 001. / V. ASST. COMMISSIONER OF INCOME TAX 11(2), AAYAKAR BHAVAN, ROOM NO. 440, 4 TH FLOOR, M.K. ROAD, MUMBAI- 400 020. ./ PAN : AASPB0014B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI M. SUBRAMANIAN REVENUE BY : SHRI MANJUNATHA SWAMY / DATE OF HEARING : 26-12-2016 / DATE OF PRONOUNCEMENT : 23-01-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING IT(SS)A NO. 39/MUM/2011, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 17 TH MARCH, 2011 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 3, MU MBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE BLOCK PERIOD 01-04-1986 TO 1 1-12-1995, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARI SING FROM THE ASSESSMENT ORDER DATED 31 ST DECEMBER, 2007 PASSED BY THE LEARNED ASSESSING OFF ICER (HEREINAFTER CALLED THE AO) U/S 158 BC(C) R.W.S. 254 OF THE INCOME-TAX ACT,1961 (HEREINAFTER CALLED THE ACT). IT(SS)A 39/MUM/2011 2 2. THE CONCISE GROUNDS OF APPEAL FILED BY THE ASSES SEE READ AS UNDER:- 1) THE COMMISSIONER OF INCOME TAX (APPEALS)-3 MUMB AI HAS ERRED IN LAW AND ON FACTS BY DISMISSING THE APPEAL IN LIMINE ON THE GROUND THAT IN VIEW OF THE PROVISIONS OF SECTIO N 253(1)(B) OF THE ACT THE CIT(A) HAS NO JURISDICTION OVER THE APP EAL AGAINST THE IMPUGNED ASSESSMENT ORDER DATED 31ST DECEMBER, 2007 PASSED UJS.158BC(C) R.W.S. 254 OF THE ACT. 2) WITHOUT PREJUDICE TO WHAT HAS BEEN STATED HEREIN ABOVE, IF IT IS HELD THAT CIT(A) IS JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE, THE FOLLOWING GROUNDS OF APPEAL MAY PLEASE BE CONSI DERED : I) THE ASSESSMENT ORDER PASSED U/S. 158BC(C) R.W.S 254 OF THE INCOME TAX ACT, 1961 DATED 31 ST DECEMBER, 2007 IS BAD IN LAW AND VOID AB INITIO ON THE FOLLOWING AMONGST OTHER G ROUNDS WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER: A) THE SAID ASSESSMENT ORDER IS TIME BARRED B) THE SAID ASSESSMENT ORDER IS AGAINST THE PRINCIP LES OF NATURAL JUSTICE AND EQUITY AS THE SEIZED DOCUMENTS HAVE NOT BEEN GIVEN TO THE APPELLANT IN SPITE OF REPEATED REQUESTS HAVING BEEN MADE IN THIS REGARD. C) NO NOTICE U/S.143(2) HAS BEEN ISSUED BEFORE PAS SING THE SAID ASSESSMENT ORDER. (II) THE ASSISTANT COMMISSIONER OF INCOME TAX 11 (2 ) (ACIT) HAS ERRED IN LAW AND ON FACTS BY MAKING AN ADDITION OF RS. 1,20,30,800/- ON ACCOUNT OF CAPITAL GAIN ON THE ALL EGED SALES OF 6,33,200 PARTLY PAID SHARES OF VATSA CORPORATION LI MITED. (III) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADD ING TOUR EXPENSES OF RS.3,31,745 U/S. 69C OF THE ACT FOR A.Y .1996-97. (IV) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADDI NG CREDIT CARD EXPENSES OF RS.5,76,979/- TO THE TOTAL INCOME OF THE ASSESSEE U/S 69C OF THE ACT. (V) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADDIN G RS.L,48,500/- TO THE TOTAL INCOME OF THE ASSESSEE A S PERQUISITES FOR USE OF TV SETS ETC BY THE ASSESSEE. IT(SS)A 39/MUM/2011 3 (VI) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADDI NG RS. 69345/- TO THE TOTAL INCOME OF THE ASSESSEE AS PERQ UISITES FOR PURCHASE OF CLOTHES BY ROLEX HOLDINGS LIMITED FROM PRACHINS. (VII) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADD ING RS.3,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE A S PERQUISITES FOR USE OF CARS OWNED BY VATSA CORPORATIONS LIMITED . (VIII) THE ACIT HAS ERRED IN LAW AND ON FACTS BY AD DING RS.55,431/- TO THE TOTAL INCOME OF THE ASSESSEE AS PERQUISITES ON ACCOUNT OF HOSPITAL EXPENSES INCURRED BY ROLEX HOLD INGS LIMITED FOR THE TREATMENT OF MRS. SONAL BHATT THE WIFE OF T HE ASSESSEE. (IX) THE ACIT HAS ERRED IN LAW AND ON FACTS BY ADDI NG RS.12,85,880/- TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED HOUSEHOLD EXPENSES ON PRESUMPTION AND ASSUMPTION BASIS WITHOUT ANY DOCUMENTS OR EVIDENCE. THE AFORESAID GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO ONE ANOTHER. 3. IN THE INSTANT APPEAL, THE ASSESSEE HAS COME IN APPEAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL (HEREINAFTER CALLED THE TRIBUNAL) CHALLENGING THE APPELLATE ORDER DATED 17 TH MARCH, 2011 PASSED BY THE LD. CIT(A) , WHEREIN THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY HOLDING AS UNDER:- 2.3 FACTS AND MATERIAL ON RECORD ARE CONSIDERED. T HE ORDER OF ITAT, MUMBAI REFERRED TO SUPRA STATES CLEARLY THAT THE ASSESSMENT HAD BEEN SET ASIDE TO BE FRAMED DE-NOVO. CONSEQUENT LY, THE ASSESSMENT U/S 158BC(C) WAS TO BE FRAMED AFRESH BY THE AO. THIS BEING THE CASE, ALL PROVISIONS PERTAINING TO AND RE LEVANT TO AN ASSESSMENT U/S. 158BC(C) WOULD BE APPLICABLE. CONSE QUENTLY, THE IMPUGNED ORDER HAD TO BE PASSED AFTER THE PREVIOUS APPROVAL OF CIT AS THE SEARCH IN APPELLANT'S CASE WAS AFTER 30- 6-95 BUT BEFORE 1-1-97. ACCORDINGLY, A.O. OBTAINED THE APPROVAL OF CIT- 11 WHICH IS RECORDED ON PAGE 13 OF THE IMPUGNED ORDER. THIS BEI NG THE CASE, APPEAL IN THE MATTER LAY BEFORE ITAT MUMBAI AS PER PROVISIONS OF SECTION 253(I)(B). HON'BLE DELHI ITAT CITED BY APPE LLANT SUPRA IS NOT APPLICABLE TO THE FACTS OF THE CASE AS THE SAID ORD ER OF AO WAS U/S IT(SS)A 39/MUM/2011 4 154 AND NOT U/S 158BC(C) AS IN THE IMPUGNED MATTER. IN SO FAR AS APPELLANTS CLAIM OF JUDICIAL PRECEDENCE IS CONCERNE D, THE HON'BLE MADHYA PRADESH HIGH COURT DECISION CITED BY APPELLA NT, WITH DUE RESPECT IS NOT APPLICABLE AS THAT ORDER PERTAINS TO THE JUDICIAL PRECEDENCE OF THE COORDINATE BENCHES OF ITAT, WHICH IS A JUDICIAL AUTHORITY. THE SAID DECISION IS NOT WITH REGARD TO CIT(A) WHOSE JURISDICTIONS ARE DIFFERENT AND SEPARATE AND WHO AR E DIFFERENT AND SEPARATE QUASI-JUDICIAL AUTHORITIES. 2.3.1 ON A CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, IT IS HELD THAT THE IMPUGNED ORDER BEING AN O RDER U/S. 158BC(C) CONSEQUENT TO THE DECISION AND DIRECTIONS OF ITAT MUMBAI BEFORE WHOM THAT APPEAL LAY AND FURTHER CONSIDERING THAT THE IMPUGNED ORDER IS AN ORDER PASSED WITH THE PRIOR AP PROVAL OF CIT- 11, MUMBAI, AND FURTHERMORE, IN VIEW OF PROVISIONS OF SECTION 253(1)(B), THE JURISDICTION OVER THE APPEAL AGAINST THE IMPUGNED ORDER DOES NOT LIE BEFORE THE O/O CIT(A)-3, MUMBAI. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A)-3, MUM BAI DOES NOT EXERCISE ANY APPELLATE JURISDICTION OVER THE APPEAL FILED BY APPELLANT AGAINST THE ORDER U/S. I58BC(C) R.W.S. 2 54 IN FORM NO. 35 FILED ON 21-1-08 AT APPEAL NO. (OLD) : CIT(A)-XI /ACIT-11{2)/IT- 220/07-08 AND (NOW) : CIT(A)- 3/ACIT-11(2)/IT-220/0 7-08. THE APPEAL IS, THEREFORE, DISMISSED IN LIMINE. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/ S 132 OF THE ACT WAS CARRIED OUT BY REVENUE AT THE RESIDENTIAL PREMISES OF THE A SSESSEE AT 131A, MAKER TOWER, CUFFE PARADE, MUMBAI ON 12 TH DECEMBER, 1995. THE BLOCK ASSESSMENT U/S 158BC(C) OF THE ACT FOR THE BLOCK PERIOD FROM 01-04-1986 TO 11-12- 1995 WAS PASSED BY THE A.O. ON 26 TH FEBRUARY, 1997 AT A TOTAL UNDISCLOSED INCOME OF RS. 1,41,50,310/-. SUBSEQUENTLY THE UNDIS CLOSED INCOME WAS REVISED AT RS. 1,47,95,685/- U/S 154 OF THE ACT DAT ED 16 TH MARCH, 1999. THE ASSESSEE CHALLENGED ASSESSMENTS MADE BY THE AO U/S 158BC(C) OF THE ACT BEFORE THE TRIBUNAL BY FILING FIRST APPEAL BEFORE T HE TRIBUNAL IN FIRST ROUND OF LITIGATION , AS IN THE INSTANT CASE OF THE ASSESSEE THE SEARCH U/S 132 OF THE ACT TOOK PLACE ON 12 TH DECEMBER, 1995, BY RELYING ON PROVISIONS OF SECTI ON 253(1)(B) OF THE ACT, WHICH IS REPRODUCED HEREUNDER : APPEALS TO THE APPELLATE TRIBUNAL. IT(SS)A 39/MUM/2011 5 253. (1) ANY ASSESSEE AGGRIEVED BY ANY O F THE FOLLOWING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER (A) ***** [(B) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONE D UNDER SECTION 132A, AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; OR ] THUS, AS PER PROVISIONS OF SECTION 253(1)(B) OF THE ACT, FOR THE SEARCHES INITIATED U/S 132 OF THE ACT , AFTER THE 30 TH JUNE 1995 , BUT BEFORE THE 1 ST DAY OF JANUARY 1997, THE FIRST APPEAL AGAINST AN ASSESS MENT ORDER PASSED BY THE AO U/S 158BC(C) OF THE ACT SHALL LIE BEFORE THE TRI BUNAL. THE ASSESSEE FOLLOWING THE PROVISIONS OF SECTION 253(1)(B) OF TH E ACT IN FIRST ROUND OF LITIGATION RIGHTLY FILED FIRST APPEAL BEFORE THE TR IBUNAL AS THE SEARCH U/S 132 OF THE ACT IN THE CASE OF THE ASSESSEE TOOK PLACE ON 1 2-12-1995 WHICH IS A DATE AFTER 30 TH JUNE 1995, BUT A DATE BEFORE THE 1 ST JANUARY 1997 , AND THERE IS NO DISPUTE ABOUT THE SAME IN THE INSTANT APPEAL BEFORE US THAT THE ASSESSEE RIGHTLY FILED FIRST APPEAL WITH THE TRIBUNAL IN THE FIRST ROUND OF LITIGATION. IN THE FIRST ROUND OF LITIGATION, THE TRIBUNAL VIDE ITS OR DERS IN IT (SS) A NO. 52/MUM/97 DATED 31-01-2007 SET ASIDE THE BLOCK ASS ESSMENT TO BE MADE DE-NOVO BY THE A.O. AFTER ALLOWING ADEQUATE OPPORTU NITY TO THE ASSESSEE. THE AO , IN COMPLIANCE WITH THE DIRECTIONS ISSUED BY TH E TRIBUNAL IN IT(SS) A NO. 52/MUM/97 VIDE ORDERS DATED 31-01-2007, IN THE SECO ND ROUND OF LITIGATION FRAMED DE NOVO ASSESSMENT FOR THE BLOCK PERIOD 01-0 4-1986 TO 11-12-1995 U/S 158BC(C) R.W.S. 254 OF THE ACT VIDE BLOCK ASSES SMENT ORDER DATED 31-12- 2007, WHEREIN THE UNDISCLOSED INCOME WAS COMPUTED FOR THE BLOCK PERIOD FROM 01-04-1986 TO 11-12-1995 AT RS. 1,47,98,680/-. 5. AGGRIEVED BY THE ASSESSMENT ORDER PASSED BY THE A.O. IN SECOND ROUND OF LITIGATION FOR THE BLOCK PERIOD FROM 01-04-1986 TO 11-12-1995 U/S 158BC(C) R.W.S. 254 OF THE ACT, THE ASSESSEE FILED FIRST AP PEAL BEFORE THE LD. CIT(A) IT(SS)A 39/MUM/2011 6 INSTEAD OF FILING FIRST APPEAL WITH THE TRIBUNAL AS STIPULATED BY THE PROVISIONS OF SECTION 253(1)(B) OF THE ACT , WHEREIN THE LD. C IT(A) DISMISSED THE APPEAL IN LIMINE VIDE APPELLATE ORDERS DATED 17-03-2011 BY HO LDING THAT THE SEARCH HAS BEEN INITIATED ON 12-12-1995 I.E. AFTER 30-6-1995 B UT BEFORE 1-1-1997 AND AS PER THE PROVISIONS OF SECTION 253(1)(B) OF THE ACT, THE FIRST APPEAL IS TO BE FILED BEFORE THE TRIBUNAL, BY HOLDING AS UNDER:- 2.3 FACTS AND MATERIAL ON RECORD ARE CONSIDERED. T HE ORDER OF ITAT, MUMBAI REFERRED TO SUPRA STATES CLEARLY THAT THE ASSESSMENT HAD BEEN SET ASIDE TO BE FRAMED DE-NOVO. CONSEQUENT LY, THE ASSESSMENT U/S 158BC(C) WAS TO BE FRAMED AFRESH BY THE AO. THIS BEING THE CASE, ALL PROVISIONS PERTAINING TO AND RE LEVANT TO AN ASSESSMENT U/S. 158BC(C) WOULD BE APPLICABLE. CONSE QUENTLY, THE IMPUGNED ORDER HAD TO BE PASSED AFTER THE PREVIOUS APPROVAL OF CIT AS THE SEARCH IN APPELLANT'S CASE WAS AFTER 30- 6-95 BUT BEFORE 1-1-97. ACCORDINGLY, A.O. OBTAINED THE APPROVAL OF CIT- 11 WHICH IS RECORDED ON PAGE 13 OF THE IMPUGNED ORDER. THIS BEI NG THE CASE, APPEAL IN THE MATTER LAY BEFORE ITAT MUMBAI AS PER PROVISIONS OF SECTION 253(I)(B). HON'BLE DELHI ITAT CITED BY APPE LLANT SUPRA IS NOT APPLICABLE TO THE FACTS OF THE CASE AS THE SAID ORD ER OF AO WAS U/S 154 AND NOT U/S 158BC(C) AS IN THE IMPUGNED MATTER. IN SO FAR AS APPELLANTS CLAIM OF JUDICIAL PRECEDENCE IS CONCERNE D, THE HON'BLE MADHYA PRADESH HIGH COURT DECISION CITED BY APPELLA NT, WITH DUE RESPECT IS NOT APPLICABLE AS THAT ORDER PERTAINS TO THE JUDICIAL PRECEDENCE OF THE COORDINATE BENCHES OF ITAT, WHICH IS A JUDICIAL AUTHORITY. THE SAID DECISION IS NOT WITH REGARD TO CIT(A) WHOSE JURISDICTIONS ARE DIFFERENT AND SEPARATE AND WHO AR E DIFFERENT AND SEPARATE QUASI-JUDICIAL AUTHORITIES. 2.3.1 ON A CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, IT IS HELD THAT THE IMPUGNED ORDER BEING AN O RDER U/S. 158BC(C) CONSEQUENT TO THE DECISION AND DIRECTIONS OF ITAT MUMBAI BEFORE WHOM THAT APPEAL LAY AND FURTHER CONSIDERING THAT THE IMPUGNED ORDER IS AN ORDER PASSED WITH THE PRIOR AP PROVAL OF CIT- 11, MUMBAI, AND FURTHERMORE, IN VIEW OF PROVISIONS OF SECTION 253(1)(B), THE JURISDICTION OVER THE APPEAL AGAINST THE IMPUGNED ORDER DOES NOT LIE BEFORE THE O/O CIT(A)-3, MUMBAI. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A)-3, MUM BAI DOES NOT EXERCISE ANY APPELLATE JURISDICTION OVER THE APPEAL FILED BY APPELLANT AGAINST THE ORDER U/S. I58BC(C) R.W.S. 2 54 IN FORM NO. 35 FILED ON 21-1-08 AT APPEAL NO. (OLD) : CIT(A)-XI /ACIT-11{2)/IT- IT(SS)A 39/MUM/2011 7 220/07-08 AND (NOW) : CIT(A)- 3/ACIT-11(2)/IT-220/0 7-08. THE APPEAL IS, THEREFORE, DISMISSED IN LIMINE. 6. AGGRIEVED BY THE APPELLATE ORDER DATED 17-03-20 11 PASSED BY THE LD. CIT(A) , THE ASSESSEE FILED SECOND APPEAL BEFORE TH E TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST APPEAL AGAINST THE BLOCK ASSESSMENT ORDER PASSED U/S 158BC(C) R.W. S. 254 OF THE ACT LIE WITH THE LD. CIT(A) AND THE LD. CIT(A) ERRED IN DISMISSI NG THE APPEAL BY HOLDING THAT THE FIRST APPEAL SHOULD HAVE BEEN FILED BEFORE THE TRIBUNAL. THE LD. COUNSEL SUBMITTED THAT THE ASSESSMENT ORDER IS NOT PASSED U /S 158BC(C) OF THE ACT , BUT WAS PASSED BY THE AO U/S 158BC(C) OF THE ACT RE AD WITH SECTION 254 OF THE ACT, AND IT IS ONLY APPEALS ARISING FROM ASSESS MENT ORDER U/S 158BC(C) OF THE ACT AS STIPULATED U/S 253(1)(B) OF THE ACT SHAL L BE FILED BEFORE THE TRIBUNAL PROVIDED THE SEARCH U/S 132 OF THE ACT HAS TAKEN AF TER 30-06-1995 BUT BEFORE 01-01-1997 AND THE ASSESSEE WAS SEARCHED BY REVENUE U/S 132 OF THE ACT ON 12-12-1995 WHICH FELL WITHIN THE SAID PERIOD. OUR A TTENTION WAS DRAWN TO THE PROVISIONS OF SECTION 253(1)(B) OF THE ACT WHICH AR E REPRODUCED HEREUNDER: 253. (1) ANY ASSESSEE AGGRIEVED BY ANY O F THE FOLLOWING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER (B) ***** [(B) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONE D UNDER SECTION 132A, AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; OR ] THUS, THE ASSESSEESS COUNSEL CONTENDED THAT THE A SSESSEE RIGHTLY PREFERRED FIRST APPEAL BEFORE THE LEARNED CIT(A) AS THE BLOCK ASSESSMENT ORDER WAS FRAMED U/S 158BC(C) OF THE ACT R.W.S. 254 OF THE AC T. OUR ATTENTION WAS ALSO DRAWN TO THE PROVISIONS OF SECTION 246A(1)(C) OF T HE ACT, WHEREIN IT IS PROVIDED THAT FIRST APPEAL ARISING FROM ORDERS PASS ED U/S 154 OF THE ACT SHALL IT(SS)A 39/MUM/2011 8 BE FILED BEFORE LEARNED CIT(A). THE PROVISIONS OF S ECTION 246A(1)(C) OF THE ACT ARE REPRODUCED HEREUNDER: [ APPEALABLE ORDERS BEFORE COMMISSIONER (APPEALS). 246A. (1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS (WHETHER MADE BEFORE OR AFTER THE APPOINTED DAY) MA Y APPEAL TO THE COMMISSIONER (APPEALS) AGAINST (A) TO (BA) *** (C) AN ORDER MADE UNDER SECTION 154 OR SECTION 155 HAVING THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING A REFUND OR AN ORDER REFUSING TO ALLOW THE CLAIM MADE BY THE ASSESSEE UNDER EITHER O F THE SAID SECTIONS; THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE WAS UND ER BONAFIDE BELIEF THAT THE FIRST APPEAL WAS RIGHTLY FILED BEFORE THE LD. C IT(A) KEEPING IN VIEW OF THE RATIO OF DECISION IN THE CASE OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF PRADEEP SINGH V. DCIT, (2005) 278 ITR (AT) 71(DELHI -TRIB.); (2005) 93 ITD 514(DEL TRIB) VIDE ORDERS DATED 11-02-2005 WHEREIN THE TRIBUNAL HELD THAT THE FIRST APPEAL IS NOT MAINTAINABLE WITH TRIBUNAL BUT SHALL LIE WITH LEARNED CIT(A) AGAINST THE ORDER OF THE A.O. U/S 154 RECTIF YING THE ORIGINAL ORDER U/S 158BC(C) OF THE ACT , WHEREIN TRIBUNAL HELD AS UNDE R: 2. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIE W THAT APPEAL IS NOT MAINTAINABLE AGAINST THE ORDER OF THE ASSESSING OFF ICER UNDER SECTION 154 RECTIFYING THE ORIGINAL ORDER UNDER SECTION 158BC D IRECTLY TO THE TRIBUNAL SINCE NO RIGHT OF APPEAL HAS BEEN CONFERRED UPON TH E ASSESSEE AGAINST SUCH ORDER UNDER SECTION 253(1) OF THE ACT. THE APP EAL WOULD LIE ONLY BEFORE THE CIT(A) UNDER SECTION 246A. THE ASSESSEE MAY FILE AN APPEAL BEFORE THE CIT(A) WITH A REQUEST FOR CONDONATION OF DELAY IF SO ADVISED. KEEPING IN VIEW THE SCHEME OF THE ACT, IT IS FURTH ER BROUGHT TO OUR NOTICE THAT EVEN THE LD. CIT(A) IN THE CASE OF MS. SANDHYA P. VAKIL WHO WAS SEARCHED ON 12-12-1995 AS PART OF SEARCHES ON VATSA CORPORATIO N LIMITED ON 12-12-1995 IT(SS)A 39/MUM/2011 9 WHEREIN THE ASSESSEE WAS ALSO SEARCHED ON SEARCHED ON 12-12-1995, THE LEARNED CIT(A) IN THE CASE OF MS SANDHYA P VAKIL HA S ADJUDICATED FIRST APPEAL AGAINST ORDER PASSED BY THE AO U/S 158 BC R.W.S. 25 4 OF THE ACT. THE COPY OF THE APPELLATE ORDER OF LEARNED CIT(A)-34 IN APPEAL NO. CIT(A)/34/IT-247/09- 10 DATED 20-01-2011 IN THE CASE OF MS. SANDHYA P VA KIL IS PLACED ON RECORD VIDE PAPER BOOK /PAGE NO. 78-87. THUS, IT IS THE C ONTENTION OF THE LD. COUNSEL THAT THE ASSESSEE WAS UNDER BONAFIDE BELIEF AND PUR SUING THE LEGAL REMEDY DILIGENTLY BY FILING THE FIRST APPEAL BEFORE THE LD . CIT(A) AND SECOND APPEAL BEFORE THE TRIBUNAL. 8. THE LD. D.R. STRONGLY SUBMITTED THAT THE FIRST A PPEAL AGAINST THE ASSESSMENT ORDER FOR THE BLOCK PERIOD 01-4-1986 TO 11-12-1995 IN THE CASE OF THE ASSESSEE SHALL LIE BEFORE THE TRIBUNAL AS THE S EARCHES HAD TAKEN PLACE ON 12-12-1995, RELYING UPON THE PROVISIONS OF SECTION 253 (1)(B) OF THE ACT. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT A SEARC H U/S 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSE SSEE AT 131A, MAKER TOWER, CUFFE PARADE, MUMBAI ON 12 TH DECEMBER, 1995 AS PART OF SEARCHES U/S 132 OF THE ACT ON VATSA CORPORATION LIMITED, WHEREIN DATE OF SEARCH WAS ON 12-12- 1995 IS PRIOR TO 01-01-1997 , BUT AFTER 30-06-1995 AND AS PER THE SCHEME OF ACT AS PER PROVISIONS OF SECTION 253(1)(B) OF THE A CT , THE FIST APPEAL FROM THE ASSESSMENT ORDER PASSED BY THE AO U/S 158BC(C) OF T HE ACT IN CASE OF SEARCHES U/S 132 OF THE ACT CONDUCTED AFTER THE 30- 06-1995 , BUT BEFORE 01- 01-1997 SHALL LIE BEFORE THE TRIBUNAL AND NOT BEFOR E THE CIT(A). SECTION 253(1)(B) OF THE ACT IS REPRODUCED HEREUNDER: 253. (1) ANY ASSESSEE AGGRIEVED BY ANY O F THE FOLLOWING ORDERS MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER (C) ***** IT(SS)A 39/MUM/2011 10 [(B) AN ORDER PASSED BY AN ASSESSING OFFICER UNDER CLAUSE (C) OF SECTION 158BC, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONE D UNDER SECTION 132A, AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; OR ] THUS, AS PER PROVISIONS OF SECTION 253(1)(B) OF THE ACT, FOR THE SEARCHES INITIATED U/S 132 OF THE ACT , AFTER THE 30 TH JUNE 1995 , BUT BEFORE THE 1 ST DAY OF JANUARY 1997, THE FIRST APPEAL AGAINST AN ASSESS MENT ORDER PASSED BY THE AO U/S 158BC(C) OF THE ACT SHALL LIE BEFORE THE TRI BUNAL. THE ASSESSEE FOLLOWING THE PROVISIONS OF SECTION 253(1)(B) OF TH E ACT IN FIRST ROUND OF LITIGATION RIGHTLY FILED FIRST APPEAL BEFORE THE TR IBUNAL AS THE SEARCH U/S 132 OF THE ACT IN THE CASE OF THE ASSESSEE TOOK PLACE ON 1 2-12-1995 WHICH IS A DATE AFTER 30 TH JUNE 1995, BUT A DATE BEFORE THE 1 ST JANUARY 1997 , AND THERE IS NO DISPUTE ABOUT THE SAME IN THE INSTANT APPEAL BEFORE US THAT THE ASSESSEE RIGHTLY FILED FIRST APPEAL WITH THE TRIBUNAL IN THE FIRST ROUND OF LITIGATION. IN THE FIRST ROUND OF LITIGATION, THE TRIBUNAL VIDE ITS OR DERS IN IT (SS) A NO. 52/MUM/97 DATED 31-01-2007 SET ASIDE THE BLOCK ASS ESSMENT FRAMED U/S 158BC(C) OF THE ACT FOR BLOCK PERIOD 01-04-1986 TO 11-12-1995 TO BE MADE DE-NOVO BY THE A.O. ON MERITS AFTER ALLOWING ADEQUA TE OPPORTUNITY TO THE ASSESSEE. THE AO , IN COMPLIANCE WITH THE DIRECTIO NS ISSUED BY THE TRIBUNAL IN IT(SS) A NO. 52/MUM/97 VIDE ORDERS DATED 31-01-2 007, IN THE SECOND ROUND OF LITIGATION FRAMED DE NOVO ASSESSMENT FOR T HE BLOCK PERIOD 01-04- 1986 TO 11-12-1995 U/S 158BC(C) R.W.S. 254 OF THE A CT VIDE BLOCK ASSESSMENT ORDER DATED 31-12-2007 FOR THE BLOCK PERIOD 01-04 -1986 TO 11-12-1995, WHEREIN THE UNDISCLOSED INCOME WAS COMPUTED FOR THE BLOCK PERIOD FROM 01- 04-1986 TO 11-12-1995 AT RS. 1,47,98,680/-. AGGRI EVED BY THE ASSESSMENT ORDER PASSED BY THE A.O. IN SECOND ROUND OF LITIGAT ION FOR THE BLOCK PERIOD FROM 01-04-1986 TO 11-12-1995 U/S 158BC(C) R.W.S. 2 54 OF THE ACT, THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD. CIT(A) INSTEAD OF FILING FIRST APPEAL IT(SS)A 39/MUM/2011 11 WITH THE TRIBUNAL AS STIPULATED BY THE PROVISIONS O F SECTION 253(1)(B) OF THE ACT , WHEREIN THE LD. CIT(A) DISMISSED THE APPEAL I N LIMINE VIDE APPELLATE ORDERS DATED 17-03-2011 BY HOLDING THAT THE SEARCH HAS BEEN INITIATED ON 12- 12-1995 I.E. AFTER 30-6-1995 BUT BEFORE 1-1-1997 AN D AS PER THE PROVISIONS OF SECTION 253(1)(B) OF THE ACT, THE FIRST APPEAL IS T O BE FILED BEFORE THE TRIBUNAL, BY HOLDING AS UNDER:- 2.3 FACTS AND MATERIAL ON RECORD ARE CONSIDERED. T HE ORDER OF ITAT, MUMBAI REFERRED TO SUPRA STATES CLEARLY THAT THE ASSESSMENT HAD BEEN SET ASIDE TO BE FRAMED DE-NOVO. CONSEQUENT LY, THE ASSESSMENT U/S 158BC(C) WAS TO BE FRAMED AFRESH BY THE AO. THIS BEING THE CASE, ALL PROVISIONS PERTAINING TO AND RE LEVANT TO AN ASSESSMENT U/S. 158BC(C) WOULD BE APPLICABLE. CONSE QUENTLY, THE IMPUGNED ORDER HAD TO BE PASSED AFTER THE PREVIOUS APPROVAL OF CIT AS THE SEARCH IN APPELLANT'S CASE WAS AFTER 30- 6-95 BUT BEFORE 1-1-97. ACCORDINGLY, A.O. OBTAINED THE APPROVAL OF CIT- 11 WHICH IS RECORDED ON PAGE 13 OF THE IMPUGNED ORDER. THIS BEI NG THE CASE, APPEAL IN THE MATTER LAY BEFORE ITAT MUMBAI AS PER PROVISIONS OF SECTION 253(I)(B). HON'BLE DELHI ITAT CITED BY APPE LLANT SUPRA IS NOT APPLICABLE TO THE FACTS OF THE CASE AS THE SAID ORD ER OF AO WAS U/S 154 AND NOT U/S 158BC(C) AS IN THE IMPUGNED MATTER. IN SO FAR AS APPELLANTS CLAIM OF JUDICIAL PRECEDENCE IS CONCERNE D, THE HON'BLE MADHYA PRADESH HIGH COURT DECISION CITED BY APPELLA NT, WITH DUE RESPECT IS NOT APPLICABLE AS THAT ORDER PERTAINS TO THE JUDICIAL PRECEDENCE OF THE COORDINATE BENCHES OF ITAT, WHICH IS A JUDICIAL AUTHORITY. THE SAID DECISION IS NOT WITH REGARD TO CIT(A) WHOSE JURISDICTIONS ARE DIFFERENT AND SEPARATE AND WHO AR E DIFFERENT AND SEPARATE QUASI-JUDICIAL AUTHORITIES. 2.3.1 ON A CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, IT IS HELD THAT THE IMPUGNED ORDER BEING AN O RDER U/S. 158BC(C) CONSEQUENT TO THE DECISION AND DIRECTIONS OF ITAT MUMBAI BEFORE WHOM THAT APPEAL LAY AND FURTHER CONSIDERING THAT THE IMPUGNED ORDER IS AN ORDER PASSED WITH THE PRIOR AP PROVAL OF CIT- 11, MUMBAI, AND FURTHERMORE, IN VIEW OF PROVISIONS OF SECTION 253(1)(B), THE JURISDICTION OVER THE APPEAL AGAINST THE IMPUGNED ORDER DOES NOT LIE BEFORE THE O/O CIT(A)-3, MUMBAI. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CIT(A)-3, MUM BAI DOES NOT EXERCISE ANY APPELLATE JURISDICTION OVER THE APPEAL FILED BY APPELLANT AGAINST THE ORDER U/S. I58BC(C) R.W.S. 2 54 IN FORM NO. 35 FILED ON 21-1-08 AT APPEAL NO. (OLD) : CIT(A)-XI /ACIT-11{2)/IT- IT(SS)A 39/MUM/2011 12 220/07-08 AND (NOW) : CIT(A)- 3/ACIT-11(2)/IT-220/0 7-08. THE APPEAL IS, THEREFORE, DISMISSED IN LIMINE. AGAINST THE APPELLATE ORDERS DATED 17-03-2011 PASSE D BY LEARNED CIT(A) IN SECOND ROUND OF LITIGATION DISMISSING THE APPEAL OF THE ASSESSEE IN LIMINE AGAINST THE ORDER U/S 158BC(C) R.W.S. 254 OF THE AC T FOR THE BLOCK PERIOD 01- 04-1986 TO 11-12-1995 , THE ASSESSEE HAD COME IN SE COND APPEAL BEFORE THE TRIBUNAL. THERE IS NO VESTED RIGHT OF THE LITIGANT TO APPEAL AND THE RIGHT TO APPEAL ARISES FROM STATUTE AS IT IS CREATURE OF STA TUTE . THE LANGUAGE OF SECTION 253(1)(B) OF THE ACT IS VERY CLEAR AS IT CLEARLY ST IPULATE THAT THE APPEAL FROM THE ORDER PASSED BY AN AO U/S 158BC(C) OF THE ACT IN RE SPECT OF SEARCHES U/S 132 OF THE ACT INITIATED AFTER 30-06-1995, BUT BEFORE 0 1-01-1997 SHALL LIE BEFORE THE TRIBUNAL. THE ASSESSEE WAS SEARCHED ON 12-12-19 95 AND THE DATES FALLS WITHIN THE PERIOD STIPULATED U/S 253(1)(B) OF THE A CT AND THE FIRST APPEAL FROM ORDERS U/S 158BC(C) OF THE ACT SHALL LIE WITH THE T RIBUNAL. THE ASSESSEE RIGHTLY FILED FIRST APPEAL BEFORE THE TRIBUNAL IN THE FIRST ROUND OF LITIGATION AGAINST THE ORDER OF THE AO U/S 158BC OF THE ACT . IN THE FIRST ROUND OF LITIGATION , THE TRIBUNAL SET ASIDE THE ASSESSMENT ORDER U/S 158BC(C ) OF THE ACT AND RESTORE THE MATTER TO THE FILE OF THE AO FOR DE-NOVO FRAMIN G OF THE ASSESSMENT ON MERITS. THE AO PASSED THE DE-NOVO ASSESSMENT ORDER AS PER DIRECTION OF THE TRIBUNAL U/S 158BC(C) OF THE ACT READ WITH SECTION 254 OF THE ACT. THUS, IN OUR CONSIDERED VIEW, THE FIRST APPEAL AGAINST ASSES SMENT ORDER U/S 158BC(C) OF THE ACT R.W.S. 254 OF THE ACT SHALL ALSO LIE BEF ORE THE TRIBUNAL AS THE SEARCHES TOOK PLACE ON 12-12-1995 WHICH FALLS WITHI N THE PERIOD STIPULATED BY SECTION 253(1)(B) OF THE ACT. THE ASSESSEE ERRED I N PURSUING LEGAL REMEDY BY FILING FIRST APPEAL AGAINST THE DE-NOVO ASSESSMENT ORDER OF THE A.O. U/S 158BC(C) R.W.S. 254 OF THE ACT BEFORE THE LD. CIT(A ) , ALBEIT STATED TO BE UNDER A BONAFIDE BELIEF RELYING ON THE DECISION OF THE TR IBUNAL IN THE CASE OF SHRI PRADEEP SINGH (SUPRA) WHICH DECISION OF THE TRIBUNA L IS IN CONTEXT OF AN ORDER PASSED U/S 154 OF THE ACT RECTIFYING ORDER U/S 158B C(C) OF THE ACT. THE IT(SS)A 39/MUM/2011 13 STATUTE PROVIDES THAT APPEAL AGAINST ORDERS U/S 154 OF THE ACT SHALL LIE BEFORE LEARNED CIT(A) BY VIRTUE OF PROVISIONS OF SECTION 2 46A(1)(C) OF THE ACT WHICH IS REPRODUCED HEREUNDER: [ APPEALABLE ORDERS BEFORE COMMISSIONER (APPEALS). 246A. (1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS (WHETHER MADE BEFORE OR AFTER THE APPOINTED DAY) MA Y APPEAL TO THE COMMISSIONER (APPEALS) AGAINST (B) TO (BA) *** (C) AN ORDER MADE UNDER SECTION 154 OR SECTION 155 HAVING THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING A REFUND OR AN ORDER REFUSING TO ALLOW THE CLAIM MADE BY THE ASSESSEE UNDER EITHER O F THE SAID SECTIONS; THE SAID APPEAL IN THE CASE OF PRADEEP SINGH(SUPR A) WAS AGAINST THE ORDER U/S 154 RECTIFYING ASSESSMENT ORDER PASSED U/S 158B C OF THE ACT . THE TRIBUNAL VIDE ORDERS DATED 11-02-2005 HELD THAT AN RIGHT TO APPEAL IS A CREATURE OF STATUTE AND NO RIGHT OF APPEAL IS CONFE RRED UPON THE TAX-PAYER TO FILE APPEAL DIRECTLY WITH THE TRIBUNAL AGAINST ORDE RS U/S 154 OF THE ACT RECTIFYING ORDER PASSED U/S 158BC(C) OF THE ACT AND THE FIRST APPEAL SHALL LIE WITH LEARNED CIT(A), THE TRIBUNAL HELD AS UNDER: 2. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIE W THAT APPEAL IS NOT MAINTAINABLE AGAINST THE ORDER OF THE ASSESSING OFF ICER UNDER SECTION 154 RECTIFYING THE ORIGINAL ORDER UNDER SECTION 158BC D IRECTLY TO THE TRIBUNAL SINCE NO RIGHT OF APPEAL HAS BEEN CONFERRED UPON TH E ASSESSEE AGAINST SUCH ORDER UNDER SECTION 253(1) OF THE ACT. THE APP EAL WOULD LIE ONLY BEFORE THE CIT(A) UNDER SECTION 246A. THE ASSESSEE MAY FILE AN APPEAL BEFORE THE CIT(A) WITH A REQUEST FOR CONDONATION OF DELAY IF SO ADVISED. THE BASIS FOR THE BELIEF AS STATED BY THE ASSESSEE WAS ALSO THE APPELLATE ORDERS PASSED BY LEARNED CIT(A) IN THE CASE OF MS. SANDHYA P VAKIL WHO WAS ALSO SEARCHED ON 12-12-1995 AS PART OF SEARCHES ON VATSA CORPORATION LIMITED , OF IT(SS)A 39/MUM/2011 14 WHICH THE ASSESSEE WAS ALSO SEARCHED AS PART OF SEA RCHES ON VATSA CORPORATION LIMITED ON 12-12-1995 , WHEREIN THE LEA RNED CIT(A) ADJUDICATED THE APPEAL OF THE TAX-PAYER MS SANDHYA P. VAKIL FIL ED AGAINST ASSESSMENT ORDER PASSED BY THE AO U/S 158BC(C) R.W.S. 254 OF T HE ACT, VIDE APPELLATE ORDERS DATED 20-01-2011 PASSED BY LEARNED CIT(A)-34 , MUMBAI IN APPEAL NO. CIT(A)/34/IT-247/09-10 (PAPER BOOK PAGE 78-87). WE HAVE OBSERVED THAT THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT EXPLAINING THA T THE ASSESSEE WAS PERSUING LEGAL REMEDY DILIGENTLY UNDER BONAFIDE BELIEF BY FI LING FIRST APPEAL WITH LEARNED CIT(A) INSTEAD OF TRIBUNAL AND REQUESTED CONDONATIO N OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL KEEPING IN VIEW DELAY OC CURRING DUE TO TIME SPENT IN PERSUING LEGAL REMEDY WRONGLY WITH LEARNED CIT(A ) INSTEAD OF FILING FIRST APPEAL WITH THE TRIBUNAL. IT WAS ALSO OTHERWISE SUB MITTED IN THE AFFIDAVIT THAT THE ASSESSEE FILED FIRST APPEAL WITH LEARNED CIT(A) AS WELL SECOND APPEAL BEFORE THE TRIBUNAL IN GOOD FAITH UNDER BONAFIE BELIEF WEL L WITHIN STATUTORY TIME PROVIDED UNDER THE ACT AND THE ASSESSEE WAS VIGILAN T IN PERSUING THE LEGAL REMEDY ALBEIT AT WRONG FORUM UNDER A BONAFIDE BELIE F AS SET OUT ABOVE. WE ARE OF THE CONSIDERED VIEW THAT THIS APPEAL IS NOT MAINTAINABLE BEFORE THE TRIBUNAL AGAINST THE APPELLATE ORDER PASSED BY LEAR NED CIT(A) AGAINST THE DE- NOVO ASSESSMENT ORDER PASSED BY AO U/S 158BC(C) R.W .S. 254 OF THE ACT FOR THE BLOCK PERIOD 01-04-1986 TO 11-12-1995 KEEPING I N VIEW CLEAR MANDATE OF SECTION 253(1)(B) OF THE ACT AND RATHER A DIRECT F IRST APPEAL SHOULD HAVE BEEN FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AGAINST T HE DE-NOVO ASSESSMENT ORDER PASSED U/S 158BC(C) OF THE ACT R.W.S. 254 OF THE AC T , KEEPING IN VIEW CLEAR MANDATE AND PROVISIONS OF SECTION 253(1)(B) OF THE ACT . HOWEVER, THE ASSESSEE UNDER A BONA-FIDE BELIEF AS SHOWN ABOVE B Y THE ASSESSEE IN HIS PLEADINGS IN DETAILS WAS STATED TO BE PURSUING THE LEGAL REMEDY DILIGENTLY ALBEIT AT WRONG FORUM BY WRONGLY FILING FIRST APPEA L BEFORE THE LEARNED CIT(A) INSTEAD OF FILING FIRST APPEAL WITH THE TRIBUNAL, AND THEN FILING SECOND APPEAL WITH THE TRIBUNAL AS DETAILED ABOVE , HENCE, WHILE DISMISSING THIS APPEAL , WE WOULD LIKE TO OBSERVE THAT THE ASSESSEE IS FREE TO FILE FRESH APPEAL BEFORE THE IT(SS)A 39/MUM/2011 15 TRIBUNAL AGAINST THE ASSESSMENT ORDER PASSED BY THE AO U/S 158BC(C) R.W.S. 254 OF THE ACT, IF SO DESIRED BY THE ASSESSEE AND T HE TRIBUNAL WHILE ADMITTING BELATED APPEAL , IF SO FILED BY THE ASSESSEE SHALL CONSIDER ON MERITS THE BONAFIDE OF THE ASSESSEE IN PERSUING LEGAL REMEDY A LBEIT AT WRONG FORUMS AS DETAILED AND SHOWN BY THE ASSESSEE BEFORE US , BEFO RE DECIDING CONDONATION APPLICATION OF THE ASSESSEE . NEEDLESS TO SAY THAT COURT WILL ASSIST LITIGANTS WHO ARE VIGILANT AND THE VIGILANT LITIGANTS SHALL N OT BE LEFT REMEDILESS IN THE INTEREST OF SUBSTANTIAL JUSTICE VIS--VIS TECHNICAL ITIES , WHEREIN COURTS WILL ALWAYS LEAN TOWARDS SUB-SERVING INTEREST OF SUBSTAN TIAL JUSTICE RATHER THAN TECHNICALITIES. THUS WITH ABOVE DETAILED DISCUSSION S AND REASONING , WE DISMISS THE APPEAL FILED BY THE ASSESSEE. WE ORDER ACCORDINGLY. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JANUARY, 2017. # $% & ' 23-01-2017 ( ) SD/- SD/- (JOGINDER SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 23-01-2017 [ .9. ./ R.K. R.K. R.K. R.K. , EX. SR. PS IT(SS)A 39/MUM/2011 16 !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI B BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI