THE INCOME TAX APPELLATE TRIBUNAL SMC Bench, Mumbai Before Shri Shamim Yahya (AM) I.T.A. No. 4595/Mum/2018 (Assessment Year 2009-10) Mr. Prakash K. Shah ACIT-17(1) 8-B, Rajabhadur Mansion V s . 1 s t Floor 11/43, Tamarind Lane Aayakar Bhavan Fort, Mumbai-400 023. M.K. Road Mumbai-400 020. PAN AACPS8291F (Appellant) (Respondent) Assessee by Shri N.R. Aggarwal Department by Shri Chaitanya Anjaria Date of Hearing 9.7.2019 Date of Pronouncement 1.10.2019 ORDER This appeal by assessee is directed against order of learned CIT(A) dated 2.7.2018 and pertains to assessment year 2009-10. 2. grounds of appeal read as under Ground No. 1 learned CIT(Appeals) erred in confirming addition by ACIT Rs. 22,11,9207- on account of client code Modification. Ground No. 2 learned CIT(Appeals) erred in para No. 3.1 of order that none of two grounds raised are about agreed addition for addition by ACIT Rs. 22,11,9207- on account of client code Modification & further erred in treating appeal as inadmissible & outside scope of section 246A . 3. In this case learned CIT(A) has dismissed assessee's appeal both on ground that same is not maintainable under section 246A of Act and also he has upheld order of assessing officer on merits. 4. facts of case and action of authorities below can be gainfully referred to by order of learned CIT(appeals) which reads as under :- 2 M r . Pr k as h K . S h h Grounds of appeal preferred are as under:- 1. Learned ACIT erred in making addition of Rs.22,11,920/- on account of client code modification. 2. Learned ACIT erred in not giving full credit of TDS claimed Rs.5,92,102/-. 2.1 ITNS 51 has been served on 26.10.2017 without response from AO. Hence, certifications therein are presumed in order and desire for presence in hearing vide Col.7 is deemed declined. 3. relevant finding of AO is as follows: "5. Information was received from DIT(I&CI), Mumbai that fictitious profits/losses were created by some brokers by misusing facility of client code modification in F&O segment on NSE. Further, spot verification of few cases of brokers by DDIT(I&C) Unit-l(l), Mumbai, u/s 131(1A) of I.T. Act, 1961 this fact was revealed and they have confirmed having misused facility of client code modification in order to create fictitious loss/profits. Since, assessee is one of beneficiary of such bogus loss, hence case is reopened. Furthermore, during course of assessment proceedings also, on verification of details of client code modification transactions from NSE, it is found that assessee has entered into many transactions wherein client codes were modified. assessee made submissions on 25/10/2016 and 04/11/2016 reiterating genuineness of transactions and asking for specific details available with Department regarding Client code modification done bv him. same was provided to Assessee. Assessee, in response filed on 25.11.2016 that though all transactions entered by him were genuine in order to avoid litigation and to buy peace of mind, he is offering said amount to tax. assessee presents following case laws where Assessee had filed revised return after search to buy peace of mind. CIT v/s Suresh Chandra Mittal CIT v/s Amalendu Paul CIT v/s Harsh Kumar Assessee in present case has revised his computation by offering amount Rs.22.ll.920/- to tax for A. Y. 2009-10. Thus, amount of Rs.22,11,920/- is added to Income from Business and Profession of Assessee for A.Y. 2009-10. Penalty proceedings u/s. 271(1)(c)are separately initiated for concealment of particulars of income." 3.1 issue is one of agreed addition. None of two grounds preferred by appellant relate to this aspect. Ld. AR has made fatal mistake of arguing 3 M r . Pr k as h K . S h h what is not even ground of appeal. In view of this legal error made appeal is liable for dismissal as not maintainable. Nonetheless, in interest of substantive justice issue of agreed addition is considered as legal issue and adjudicated first as follows. 5. Thereafter learned CIT(appeals) referred to several case laws and finally concluded as under :- order of AO is upheld. appeal is held as inadmissible on grounds of maintainability and is disallowed for admission. Hence adjudication is not made u/s 250(6) which is for valid appeals but rather u/s 246A(1). reference by assessee is held outside scope of s 246A.The adjudication on merit is rendered inapplicable and hors de combat. For statistical purposes only, appeal shall be treated as dismissed . 6. Against this order assessee is in appeal before ITAT. I have heard both counsel and perused records. I find that learned CIT(A) in this case has totally erred in dismissing appeal by holding that same is not maintainable and thereafter also deciding upon merits of case. order of learned CIT( appeals) is not sustainable on this account itself. 7. Furthermore I hold that assessee has filed revised return before assessing officer. assessing officer despite noting revised return and assessee's offer of amount for taxation has held that amount offered by assessee for taxation was added as undisclosed income. In this view of matter assessee was very much entitled to raise appeal before learned commission of income tax appeals. Moreover as settled by honourable Supreme Court in case of Bharat Heavy Electricals Vs.Mahendra Prasad Jakhmola and other (Civil Appeal No. 1837 and others vide order dt. 28.2.2019) that on questions of law and mixed questions of law and fact concession by assessee's counsel will not act as estoppel for assessee to challenge same. In this view of matter in my considered opinion issue needs to be remitted to file of learned CIT(appeals). learned CIT(A) is directed to consider issue on merits and pass speaking order after giving assessee proper opportunity of being heard. 4 M r . Pr k as h K . S h h 8. In result this appeal filed by assessee stands allowed for statistical purposes. Order has been pronounced in Court on 1.10.2019. SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Mumbai Dated 1/10/2019 Copy of Order forwarded to 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, (Assistant Registrar) PS ITAT, Mumba Prakash K. Shah v. ACIT-17(1), Mumbai