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2024 (4) TMI 920 - ITAT DELHIRectification u/s 154 - disallowance u/s 36(1)(va) for delay in depositing employee contribution of PF/ESI - Rectification was made relating to the additions u/s 36(1) by giving reason that addition was missed by the assessing officer while passing order u/s 143(3) - Doctrine of merger of intimation u/s 143(1) and the assessment order u/s 143(3) - If intimation u/s 143(1) of the Act got merged with assessment order u/s 143(3) and consequently AO was not justified to make addition by way of rectification u/s 154 on the basis of facts which have been considered during assessment - HELD THAT:- While exercising power u/s 154 r.w.s. 143(3) AO has not gone back to reconsider the issues examined u/s 143(3) and make an addition thereupon. It is not a case where rectification power was exercised consequent to any change of law or applying a different proposition of law than one considered while framing assessment u/s 143(3) of the Act. The rectification order as reproduced above makes it apparent that the income determined vide intimation u/s 143(1) was taken as income for making further additions u/s 143(3) assessment. Certainly that was a mistake apparent from record as the intimation u/s 139(1) stood final after withdrawal of the appeal by the assessee. Accordingly, the difference between the returned income and the assessed income u/s 143(1) was erroneously ignored while passing order u/s 143(3). Therefore we are of view AO had committed no error in exercising the rectification powers u/s 154. As with regard to applicability of the doctrine of merger of intimation u/s 143(1) and the assessment order u/s 143(3) the proposition of law in case Title M/s. Areca Trust [2024 (3) TMI 707 - ITAT BANGALORE] where the additions made under intimidation u/s 143(1) and !43(3) are on different issues and heads and intimation u/s 143(1) of the Act stood final after withdrawal of appeal by assessee, on what so ever erroneous belief, there was no merger of two orders. Whether addition could be made by learned AO by exercising powers u/s 154 of the Act where learned AO had accepted the return filed u/s 139 of the Act vide intimation u/s 143(1) of the Act? - There in the question of delay in deposit of the employees’ contribution was very much in the assessment records upon which the intimation u/s 143(1) was served upon the assessee and no disallowance was made. However, here in the case in hand the addition was made in intimation u/s 143(1) of the Act with regard to disallowances on account of delayed contribution of PF and ESI and the house property income, in intimation u/s 143(1) of the Act. In scrutiny assessment these issues were not under examination so as to say that while exercising powers rectification the Ld. AO has made rectification due to any change in opinion of law or fact.
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