Shri Jayantilal Nathalal Patel, Ahmedabad V. The DY.CIT., Circle-1, Ahmedabad

MA 242/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6783 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINOD RANWANI
• Assessee Lawyers: P M PATEL
• Keywords: Reasonable cause; Block assessment; Condonation of delay
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND A. K. GARODIA, AM) M. A. NO.242/AHD/2010 (IN IT (SS) A NO.86/AHD/2004- BP 01-04-1985 TO 31-0 3-1995 & 01-04- 1995 TO 31-03-1996) JAYANTILAL N. PATEL, 2, TEJAS APARTMENT, 38, AZAD SOCIETY, AMBAWADI, AHMEDABAD VS THE D.C. I. T., CIRCLE-1, JITENDRA CHAMBER, ASHRAM ROAD, AHMEDABAD PA NO. AICPP 5250 H (APPLICANT) (RESPONDENT) APPLICANT BY SHRI P. M. PATEL, AR RESPONDENT BY SHRI VINOD RANWANI, SR. DR DATE OF HEARING: 26-08-2011 DATE OF PRONOUNCEMENT:30-08-2011 ORDER PER BHAVNESH SAINI : THE ASSESSEE PREFERRED THE PRESENT MISC. APPLICATION AGAINST THE ORDER OF THE TRIBUNAL DATED 23-04-2010 WHEREBY THE APPEAL OF THE ASSESSEE WAS D ISMISSED BEING TIME BARRED. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE PREFERRED THE FIRST APPEAL AGAINST THE ORDER OF THE DCIT, CIRCLE- 1, AHMEDABAD, DATED 29-12-2006 PASSED U/S 144 READ WITH SECTION 1 58 BC AND 254 OF THE IT ACT FOR THE ABOVE BLOCK PERIOD. IN THIS C ASE, SEARCH WAS CONDUCTED ON 14-03-1996. THE BLOCK ASSESSMENT ORDER WAS PASSED ON 30-04-1997 U/S 158 BC READ WITH SECTION 143(3) O F THE IT ACT. THE ASSESSEE BEING AGGRIEVED AGAINST THE ORDER OF THE D CIT (ASSESSMENT), SPECIAL RANGE-I, AHMEDABAD PREFERRED APPEAL BEFORE MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 2 ITAT, AHMEDABAD BENCH WHO VIDE ORDER DATED 16-03-20 05 IN IT (SS) A NO.112/AHD/2007 SET ASIDE THE ORDER AND RESTORED THE MATTER BACK TO THE AO FOR RE-ADJUDICATION. THE AO TOOK UP THE M ATTER FOR GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. DESPITE GIVING SEVERAL NOTICES TO THE ASSESSEE FOR COMPLETION OF THE HEARING, THE ASS ESSEE DID NOT ATTEND AND DID NOT CO-OPERATE WITH THE AO. THE AO C ONSIDERING THE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE PROCEEDED EX-PARTE U/S 144 OF THE IT ACT AND RE-FRAMED THE BLOCK ASSESSMENT OR DER DATED 29-12-2006 UNDER APPEAL. THE ASSESSEE INSTEAD OF FI LING DIRECT APPEAL BEFORE THE TRIBUNAL, PREFERRED APPEAL BEFORE THE LEARNED CIT(A)-V, AHMEDABAD WHO VIDE ORDER DATED 15-03-2007 NOTED THAT THE APPEAL CANNOT BE ENTERTAINED BECAUSE IN THIS CA SE SEARCH WAS CARRIED OUT PRIOR TO 01-01-1997, IN TERMS OF SUB SE CTION (1) (B) OF SECTION 253 OF THE IT ACT. THE APPEAL OF THE ASSESS EE WAS TO BE FILED DIRECTLY TO THE TRIBUNAL AS WAS FILED EARLIER AND A CCORDINGLY THE APPEAL OF THE ASSESSEE WAS DISMISSED BEING NON-MAINTAINABL E. THE ASSESSEE ACCORDINGLY PREFERRED THE PRESENT APPEAL B EFORE THE TRIBUNAL. COLUMN NO.9 OF THE APPEAL PAPERS WAS BLAN K BECAUSE IT WAS NOT FILLED IN GIVING THE PARTICULARS OF DATE OF COMMUNICATION OF THE ORDER APPEALED. SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE. THE ASSESSEE IN RESPONSE THERETO SUBMITTED THAT ORDER O F THE AO U/S 144 READ WITH SECTION 158 BC AND 254 OF THE IT ACT WAS RECEIVED ON 09-04-2007 AND PARA 9 OF THE APPEAL PAPERS WAS ACCO RDINGLY FILLED IN BY MENTIONING THE DATE OF COMMUNICATION OF THE ORDE R APPEALED AS 09-04-2007. IT WAS, THEREFORE, PRAYED THAT THIS WAS THE MAIN REASON FOR NOT SUBMITTING THE APPEAL ON TIME BEFORE THE TR IBUNAL. THE ASSESSEE DID NOT PUT IN APPEARANCE BEFORE THE TRIBU NAL ON THE DATE OF MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 3 HEARING. THE LEARNED DR SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE WITH THE AO AND AS SUCH EX-PARTE ASSESSME NT ORDER WAS PASSED. IT WAS FURTHER SUBMITTED THAT THE AVERMENTS CONTAINED IN THE APPLICATION FOR CONDONATION OF DELAY WERE FALSE AND INCORRECT BECAUSE THE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSE SSEE ON 15-03-2007 AND NOTED THAT THE APPEAL WAS INSTITUTED BEFORE HIM ON 18-03-2007. THEREFORE, THE ASSESSEE HAS FALSELY MEN TIONED 09-03-2007 AS THE DATE OF RECEIPT OF THE ORDER OF T HE AO. THE LEARNED DR, THEREFORE, SUBMITTED THAT SINCE THE ASSESSEE DI D NOT CO-OPERATE WITH THE AO AT THE ASSESSMENT PROCEEDINGS AND MADE FALSE STATEMENT IN THE APPEAL PAPERS, THEREFORE, THE ASSE SSEE HAS NO REASONABLE CAUSE TO EXPLAIN THE DELAY IN FILING THE APPEAL DUE TO SUFFICIENT CAUSE. THE LEARNED DR, THEREFORE, SUBMIT TED THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 3. THE TRIBUNAL CONSIDERING THE FACTS AND CIRCUMSTA NCES OF THE CASE, MATERIAL ON RECORD AND APPLICATION FOR CONDON ATION OF DELAY HELD THAT THE APPEAL IS TIME BARRED AND THE APPEAL OF TH E ASSESSEE WAS ACCORDINGLY DISMISSED. THE FINDINGS OF THE TRIBUNAL IN PARA 5 ARE REPRODUCED AS UNDER: 5. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSIONS OF THE LEARNED DR, WE ARE OF THE VIEW T HAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE BEIN G TIME BARRED AND IS LIABLE TO BE DISMISSED. THE ASSESSEE FILED THE APPEAL IN THE OFFICE OF THE TRIBUNAL ON 03 RD MAY, 2007. THE APPEAL TO THE TRIBUNAL LIES WITHIN SIXTY DAYS O F THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAIN ST IS COMMUNICATED TO THE ASSESSEE. THE LEARNED CIT(A) IN THE ORDER DATED 15 TH MARCH, 2007 SPECIFICALLY NOTED THAT THE MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 4 APPEAL IS INSTITUTED AGAINST THE ORDER OF THE DCIT, AHMEDABAD CIRCLE-1, AHMEDABAD BEFORE HIM ON 18 TH JANUARY, 2007. IT WOULD SHOW THAT THE BLOCK ASSESSM ENT ORDER DATED 29 TH DECEMBER, 2006 WAS COMMUNICATED TO THE ASSESSEE PRIOR TO 18 TH JANUARY, 2007. WHEN THE OFFICE OF THE TRIBUNAL ISSUED A NOTICE TO THE ASSESSEE BEC AUSE COLUMN NO.9 OF THE APPEAL PAPER WAS NOT FILLED IN, THE ASSESSEE EXPLAINED THAT THE BLOCK ASSESSMENT ORDER OF THE AO WAS RECEIVED ON 09 TH APRIL, 2007 AND THAT DUE TO FILING OF THE APPEAL BEFORE THE LEARNED CIT(A) WRON GLY, THERE IS A DELAY WHICH MAY BE CONDONED. THE EXPLANA TION OF THE ASSESSEE IS FACTUALLY INCORRECT BECAUSE THE ORDER OF THE AO WAS NOT COMMUNICATED TO THE ASSESSEE ON 09 TH APRIL, 2007 AS ALLEGED. IT WAS COMMUNICATED TO THE ASSESSEE PRIOR TO 18 TH JANUARY, 2007 WHEN THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A). IT IS A LSO HIGHLY UNBELIEVABLE THAT THE ASSESSEE WAS NOT AWARE OF THE PROVISIONS OF LAW THAT APPEAL HAS TO BE FILED D IRECTLY BEFORE THE TRIBUNAL BECAUSE SEARCH WAS CONDUCTED BEFORE 01 ST JANUARY, 1997, AS PER SECTION 253(1) (B) OF THE IT ACT BECAUSE THE ASSESSEE ON THE FIRST INSTANCE PREFERRED APPEAL BEFORE THE TRIBUNAL AGAINST THE OR IGINAL BLOCK ASSESSMENT ORDER IN IT(SS)A NO.112/AHD/1997. WHEN THE ASSESSEE WAS AWARE OF THE FACT THAT APPEAL LIES DIRECTLY TO THE TRIBUNAL AGAINST THE BLOCK ASSESSME NT ORDER, THERE WAS NO REASON FOR THE ASSESSEE TO HAVE PREFERRED THE APPEAL BEFORE THE LEARNED CIT(A), AHMEDABAD IN THIS MATTER. CONSIDERING THE NON- COOPERATIVE ATTITUDE OF THE ASSESSEE BEFORE THE AO AND THAT THE ASSESSEE MADE FACTUALLY INCORRECT STATEMEN T IN THE APPLICATION FOR CONDONATION OF DELAY, WE ARE OF THE VIEW THAT THERE WAS NO SUFFICIENT CAUSE FOR NOT PRE SENTING THE APPEAL BEFORE THE TRIBUNAL WITHIN THAT PERIOD. WE ACCORDINGLY ACCEPT THE CONTENTION OF THE LEARNED DR THAT THE APPEAL IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED. IN VIEW OF THE ABOVE DISCUSSIONS THE APP EAL OF THE ASSESSEE IS DISMISSED BEING TIME BARRED. MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 5 4. IN THE BACKGROUND OF THE ABOVE FACTS, THE ASSESS EE PREFERRED THE PRESENT MISC. APPLICATION. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO THE PRAYER IN THE MISC. APPLICATION AND SUBMITTED THAT IN THE APPLICATION FOR CONDONATION OF DELAY 09-04-2010 WAS INADVERTENTLY MENTIONED AS THE DATE OF RECEIPT OF ASSESSMENT ORDE R. IN FACT, THE ASSESSMENT ORDER WAS RECEIVED ON 18-01-2007. HE HAS FURTHER SU BMITTED THAT IN THE DEMAND NOTICE U/S 156 OF THE IT ACT DATED 29-12 -2006 THE AO MENTIONED THAT APPEAL COULD BE PREFERRED WITHIN THI RTY DAYS BEFORE THE LEARNED CIT(A)-V, AHMEDABAD ON RECEIPT OF THE IMPUG NED ASSESSMENT ORDER. HE HAS, THEREFORE, SUBMITTED THA T THE ASSESSEE WAS MISDIRECTED BY THE DEMAND NOTICE ISSUED BY THE AO AND SUBMITTED THAT THE APPLICATION FOR CONDONATION OF D ELAY WAS NOT CONSIDERED BY THE TRIBUNAL. HE HAS RELIED UPON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF LAXMI E LECTRONICS CORPORATION LTD. VS CIT 188 ITR 398 IN WHICH IT WAS HELD THAT WHEN THE TRIBUNAL FAILS OR OMITS TO DEAL WITH AN IMPORTA NT CONTENTION EFFECTING MAINTAINABILITY/MERITS OF THE APPEAL, IT MUST BE DEEMED TO BE MISTAKE APPARENT FROM RECORD WHICH THE TRIBUN AL IS EMPOWERED TO RECTIFY. HE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE M. P. HIGH COURT IN THE CASE OF CIT VS ITAT , 172 ITR 158 IN WHICH IT WAS HELD THAT POINT MATERIAL FOR DETERMINING AMOUNT OF TAX PRESS ED BUT NOT CONSIDERED BY TRIBUNAL WOULD CONSTITUTE MISTAKE APPARENT FROM RECORD. HE HAS ALSO RELIED UPON THE DECISION OF THE HONBL E DELHI HIGH COURT IN THE CASE OF AVTAR KRISHAN DASS VS CIT, 133 ITR 338 IN WHICH IT WAS HELD THAT APPEAL WRONGLY FILED BEFORE AAC ON THE BASIS OF WRONG NOTING IN DEMAND NOTICE. SAME AR E DISMISSED. APPEAL FILED BEFORE THE TRIBUNAL WITHOUT DELAY MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 6 THEREAFTER. TRIBUNAL DISMISSED THE APPEAL AS TIME B ARRED NOT JUSTIFIED. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTE D THAT SINCE THE ASSESSEE WAS DEPENDENT UPON LEGAL OPINION , THEREFORE, THE ASSESSEE SHOULD NOT BE PENALIZED FOR BONA FIDE MIST AKE OF THE LEGAL ADVISER AND ACCORDINGLY MISC. APPLICATION MAY BE AL LOWED AND EARLIER ORDER MAY BE SET ASIDE AND THE ASSESSEE MAY BE GIVE N OPPORTUNITY FOR HEARING OF THE REGULAR APPEAL. 5. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT ALL THE AVERMENTS OF THE APPLICATION FOR CONDONATION OF DEL AY WERE CONSIDERED BY THE TRIBUNAL WHILE DISMISSING THE APP EAL OF THE ASSESSEE. IT WAS FOUND THAT THE ASSESSEE MADE FACTU ALLY INCORRECT STATEMENT IN THE APPLICATION FOR CONDONATION OF DEL AY AND WHEN THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL IN TH E FIRST ROUND OF PROCEEDINGS, THERE WAS NO REASON TO FILE APPEAL BEF ORE THE LEARNED CIT(A) IN THE SECOND ROUND PROCEEDINGS ON THE SAME MATTER IN ISSUE. THE LEARNED DR SUBMITTED THAT THE TRIBUNAL HAS NO P OWER TO REVIEW ITS ORDERS. THEREFORE, THE MISC. APPLICATION HAS NO MERIT AND SHALL HAVE TO BE DISMISSED. THE LEARNED DR SUBMITTED THAT THE DECISION IN THE CASE OF AVTAR KRISHAN DASS VS CIT, 133 ITR 338 WAS NOT CITED BEFORE THE TRIBUNAL WHEN THE APPEAL WAS HEARD ON EA RLIER OCCASION. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND THE MAT ERIAL ON RECORD. THE FACTS NOTED ABOVE HAVE NOT BEEN DISPUTE D BY BOTH THE PARTIES. SINCE, IN THIS CASE SEARCH WAS CONDUCTED P RIOR TO 01-01-1997, THEREFORE, ACCORDING TO SECTION 253 (1) ( B ) OF THE IT ACT THE ORDER PASSED BY THE AO U/S 158 BC OF THE IT ACT COULD BE SUBJECT MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 7 TO APPEAL BEFORE THE TRIBUNAL DIRECTLY. IN THE CASE OF THE ASSESSEE IF THE ASSESSEE WAS AGGRIEVED AGAINST THE BLOCK ASSESS MENT ORDER, THE APPEAL COULD BE FILED DIRECTLY TO THE TRIBUNAL BEIN G THE SEARCH CONDUCTED PRIOR TO 01-01-1997. IN THE FIRST ROUND O F PROCEEDINGS, THE ASSESSEE CORRECTLY CHALLENGED THE ASSESSMENT ORDER BEFORE THE TRIBUNAL WHICH REMAINED SUBJECT MATTER IN APPEAL BE FORE THE TRIBUNAL IN IT(SS) A NO.112/AHD/1997.SINCE COLUMN NO.9 OF TH E APPEAL PAPERS WAS BLANK, THEREFORE, SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE IN RESPONSE THERETO SUBMI TTED THAT THE ORDER OF THE AO U/S 144 READ WITH SECTION 158BC AND 254 OF THE IT ACT WAS RECEIVED ON 09-04-2007 AND PARA 9 OF THE AP PEAL PAPERS WAS ACCORDINGLY FILLED IN BY MENTIONING THE DATE OF COMMUNICATION OF THE ORDER APPEALED AS 09-04-2007. IT WAS ALSO EXPLA INED THAT THIS WAS THE MAIN REASON FOR NOT SUBMITTING THE APPEAL ON TI ME BEFORE THE TRIBUNAL. IT WAS FURTHER NOTED IN THE APPLICATION F OR CONDONATION OF DELAY THAT SINCE IN THE DEMAND NOTICE U/S 156 OF TH E IT ACT IT WAS MENTIONED THAT APPEAL COULD BE PREFERRED BEFORE THE LEARNED CIT(A) WITHIN THIRTY DAYS, THEREFORE, APPEAL WAS FILED BEF ORE THE LEARNED CIT(A) ALSO. IN THE PRAYER OF THE MISC. APPLICATION , THE ASSESSEE HAS NOW CLAIMED THAT DUE TO INADVERTENT MISTAKE IN THE APPLICATION FOR CONDONATION OF DELAY 09-04-2010 WAS MENTIONED AS DA TE OF RECEIPT OF THE ASSESSMENT ORDER IN FACT IT WAS 18-01-2007. THE ASSESSEE, THEREFORE, STATED THAT IT WAS A MISTAKE IN THE APPL ICATION FOR CONDONATION OF DELAY. THE TRIBUNAL CONSIDERED THE A VERMENTS OF THE APPLICATION FOR CONDONATION OF DELAY WHILE DECIDING THE APPEAL OF THE ASSESSEE. IT MAY BE A MISTAKE IN THE APPLICATION FO R CONDONATION OF DELAY BUT IT CANNOT BE CONSIDERED AS MISTAKE APPARE NT IN THE ORDER OF MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 8 THE TRIBUNAL. THE TRIBUNAL ALSO CONSIDERED IN THE O RDER THAT EXPLANATION OF THE ASSESSEE IS ACTUALLY INCORRECT B ECAUSE THE IMPUGNED ORDER WAS NOT RECEIVED ON 09-04-2007 BECAU SE PRIOR TO THAT ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL AGAINST THE SAID ORDER. IT WAS ALSO CONSIDERED THAT IT IS HIGHLY UNB ELIEVABLE THAT THE ASSESSEE WAS NOT AWARE OF PROVISIONS OF LAW THAT AP PEAL IS TO BE FILED DIRECTLY BEFORE THE TRIBUNAL BECAUSE SEARCH WAS CON DUCTED BEFORE 01-01-1997, AS THE ASSESSEE IN THE FIRST INSTANCE P REFERRED APPEAL BEFORE THE TRIBUNAL DIRECTLY AGAINST THE ORIGINAL B LOCK ASSESSMENT ORDER. THE AO ALSO MENTIONED IN THE IMPUGNED ASSESS MENT ORDER ALL THE FACTS AND THE FACT THAT THE MATTER IS RESTORED TO HIM BY THE TRIBUNAL. THE IMPUGNED ORDER IS PASSED EX-PARTE U/S 144/158BC/254 OF THE IT ACT. THEREFORE, THERE WAS NO REASON TO PR EFER ANY APPEAL BEFORE THE LEARNED CIT(A) IN THE MATTER. WHEN THE A SSESSEE WAS AWARE OF HT FACT THAT APPEAL LIES DIRECTLY TO THE T RIBUNAL AGAINST BLOCK ASSESSMENT ORDER, THERE WAS NO REASON FOR THE ASSES SEE TO BE MISDIRECTED BY THE DEMAND NOTICE ISSUED BY THE AO. SINCE THE TRIBUNAL CONSIDERED THAT THE ASSESSEE MADE FACTUALL Y INCORRECT STATEMENT IN THE APPLICATION FOR CONDONATION OF DEL AY WOULD SHOW THAT THE TRIBUNAL CONSIDERED THE APPLICATION FOR DELAY I N ENTIRETY WHILE DISMISSING THE APPEAL OF THE ASSESSEE. CONTENTION O F THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS FAIL ED TO CONSIDER THE IMPORTANT CONTENTION OF THE ASSESSEE HAS NO MERIT A ND IS LIABLE TO BE REJECTED. THE APPLICATION FOR CONDONATION OF DELAY WAS CONSIDERED IN THE LIGHT OF ALL THE FACTS AND MATERIAL ON RECORD A ND IT WAS FOUND THAT THE ASSESSEE MADE FACTUALLY INCORRECT STATEMENT IN THE APPLICATION FOR CONDONATION OF DELAY WHICH FACT IS NOT DISPUTED BY THE ASSESSEE EVEN MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 9 IN THE MISC. APPLICATION BECAUSE IN THE PRAYER THE ASSESSEE ADMITTED THAT THE DATE OF RECEIPT OF THE ASSESSMENT ORDER IS 09-04-2007 WAS INADVERTENTLY MENTIONED WOULD SHOW THAT IT WAS A MI STAKE OF THE ASSESSEE IN DOING SO, BUT NOT OF THE TRIBUNAL. THE ASSESSEES COUNSEL FURTHER EXPLAINED THAT THE ASSESSEE WAS DEP ENDENT UPON LEGAL OPINION AND FILED THE APPEAL BEFORE THE LEARN ED CIT(A) BONA FIDE. AS NOTED ABOVE, WHEN THE ASSESSEE PREFERRED A PPEAL TO THE TRIBUNAL AGAINST BLOCK ASSESSMENT ORDER IN THE FIRS T ROUND PROCEEDINGS, IT CANNOT BE BELIEVED THAT THE ASSESSE E WAS NOT AWARE OF THE PROVISIONS OF LAW THAT APPEAL IN THIS CASE H AS TO BE FILED DIRECTLY BEFORE THE TRIBUNAL. THE DECISIONS CITED BY THE LEA RNED COUNSEL FOR THE ASSESSEE THUS ARE CLEARLY DISTINGUISHABLE ON FA CTS OF THIS CASE. MOREOVER, IT IS SETTLED LAW THAT TRIBUNAL HAS NO PO WER OF REVIEW. THE TRIBUNAL CANNOT CHANGE THE VIEW ALREADY TAKEN IN TH E MATTER. WE RELY UPON THE DECISION OF THE HONBLE CALCUTTA HIGH COUR T IN THE CASE OF ANAMIKA BUILDERS, 251 ITR 585, DECISION OF THE HON BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF IDEAL ENGINEERING 251 ITR, 743, DECISION OF THE HONBLE M. P. HIGH COURT IN THE CAS E OF AGARWAL WAREHOUSING AND LEASING, 257 ITR 235 AND THE DECISI ON OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF ADIYER HOT EL, 294 ITR 159. SINCE THE TRIBUNAL CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY AND MATERIAL ON RECORD ALREADY HELD THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AND WAS DISMISSED BEIN G TIME BARRED, THE ORDER ALREADY PASSED ON MERIT CANNOT BE REVIEWE D TO GIVE OPPORTUNITY TO THE ASSESSEE TO ARGUE THE APPEAL ON MERIT. MISC. APPLICATION OF THE ASSESSEE THUS HAS NO MERIT AND I S LIABLE TO BE DISMISSED. THE LEARNED COUNSEL FOR THE ASSESSEE LAS TLY ARGUED THAT MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 10 PRESENT MISC. APPLICATION MAY BE CONSIDERED AS MERC Y PETITION ON BEHALF OF THE ASSESSEE AND ORDER MAY BE REVIEWED AN D APPEAL MAYBE FIXED FOR HEARING. SUCH A PLEA IN THE MATTER IS NOT TENABLE IN LAW. THERE IS NO PROVISION IN IT ACT TO ALLOW MERCY PLEA OF THE ASSESSEE TO CHANGE THE VIEW ALREADY TAKEN IN THE MA TTER. CONSIDERING THE FACTS AND CIRCUMSTANCES NOTED ABOVE, WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD. ALL THE ISSUES RAISED BY THE AS SESSEE IN THE APPLICATION FOR CONDONATION OF DELAY HAVE ALREADY B EEN CONSIDERED ON MERIT IN PARA 5 OF THE ORDER OF THE TRIBUNAL DATED 23-04-2010. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT ARGUE ON T HE POINT AS TO WHY THE ASSESSEES COUNSEL DID NOT APPEAR BEFORE TH E TRIBUNAL ON THE DATE OF HEARING. NO EXPLANATION IS GIVEN AS TO WHAT WAS THE CAUSE FOR NOT ARGUING THE APPEAL BEFORE THE TRIBUNAL ON T HE DATE OF HEARING. IT WAS NOTED IN THE ORDER OF THE TRIBUNAL THAT ADJO URNMENT APPLICATION WAS UNNECESSARY WHICH WAS REJECTED. NOTHING IS, THE REFORE, EXPLAINED FOR NON-APPEARANCE ON THE DATE OF HEARING. THE LEAR NED COUNSEL FOR THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE AP PARENT ON RECORD IN THE ORDER OF THE TRIBUNAL. MISC. APPLICATION HAS NO MERIT AND IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30-08-2011 SD/- SD/- (A. K. GARODIA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT/- MA NO.242/AHD/2010 (IN IT (SS) A NO. 86/AHD//2007) JAYANTILAL N. PATEL VS DCIT, CIRCLE-1, AHMEDABAD 11 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD