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2021 (1) TMI 36 - AT - Income TaxOrder u/s.154 - AO has disallowed the entire prior paid expenditure - disallowance was made in the first rectification order dated 19.02.2015 wherein the Assessing Officer has made disallowance of prior paid expenditure - Two rectification applications filed - HELD THAT:- In so far as second rectification order dated 28.07.2015, no disallowance has been made; and in fact whatever relief was sought by the assessee in its application has been allowed. Ld. counsel has also informed that assessee has even filed second set of rectification application before the Assessing Officer against order dated 09.02.2015, wherein it has challenged the entire disallowance of prior period expenditure which has not been disposed off; and secondly, it has also been prayed before us that liberty should be given to file the appeal before the first appellate authority against the first rectification order passed u/s.154 dated 19.02.2015. These pleas have been taken only by way of alternative contention, otherwise the main contention of the ld. counsel is that the first rectification order has been merged with the second rectification order, and therefore, all these issues arising in the first rectification order are open and can be challenged by the assessee. However, we are unable to accept this contention of the ld. counsel, because the right course of remedy would have been that assessee should have filed the appeal before the appellate forum against the first rectification order dated 19.02.2015 and/ or had filed an application for rectification against the said order. Since right to appeal is a substantial right and if any disallowance has been made which otherwise is not sustainable in law and on facts, then such a legal remedy is always available to the assessee in the interest of substantial justice. We are granting liberty to the assessee to file appeal before the first appellate authority against the first rectification order dated 19.02.2015 along with petition for condonation of delay where it can challenge such disallowance in the said appeal. Assessing Officer is also directed to dispose of the rectification application if the assessee has filed such an application against first rectification order dated 19.02.2015 expeditiously.
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