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2015 (12) TMI 1416 - ITAT DELHI

2015 (12) TMI 1416 - ITAT DELHI - TMI - Rectification of mistake - registration as per the provisions of Section 12AA granted w.e.f. 31.03.2003 by the Commissioner of Income Tax whereas the first day of the financial year would be 01.04.2002 as per assessee - whether order under Section 154 of the Act in respect of section 12AA of the Act was not included in the list of orders which are appealable, the appeal filed against the said order is not maintainable? - Held that:- It is undisputed that t .....

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statute specifically provides for filing an appeal against a particular order, no right of appeal can be said to be conferred upon an assessee. See case of Pradeep Singh Vs. Deputy Commissioner of Income Tax [2005 (2) TMI 459 - ITAT DELHI-F ].

The appeal filed by the assessee against the order passed under Section 154 of the Act to the order under Section 12AA is not maintainable. However, the assessee may file an appeal against the order passed under Section 12AA of the Act by the Co .....

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Income Tax (Exemptions), Lucknow under Section 154 of the Income-tax Act, 1961 (for short the Act ), raising the following grounds of appeal: i. That having regard to the facts and circumstances of the case, learned Commissioner of Income Tax (Exemption) has erred in law and on facts in rejecting the application u/s 154 filed by the assessee that too without appreciating the facts and circumstances of the case and without giving adequate opportunity of hearing. ii. That having regard to the fac .....

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of the case. iv. That having regard to the facts and circumstances of the case, learned Commissioner of Income Tax (Exemption) has erred in law and on facts in passing the impugned order u/s 154 which is bad in law, illegal, beyond jurisdiction, barred by limitation, having been passed in violation of principles of natural justice and without providing adequate opportunity of hearing and by recording incurred facts and findings. v. That the appellant craves the leave to add, modify, amend or de .....

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e Act, with direction as under: 6. We had carefully gone through the above order of ITAT and found that under the similar facts and circumstances the local authorities was held to be eligible for registration under Section 12AA of the Income Tax Act. 7. In the result, appeal of the assessee is allowed. 2.1 In compliance to the above direction, the Commissioner of Income Tax issued order on 20.09.2010 granting registration to the assessee. The relevant portion of the order is reproduced below: In .....

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ome Tax, Ghaziabad. In view of the assessee, according to the proviso just below the section 12(1)(a) of the Act, the registration was to be granted from first day of the financial year in which the application was made. In the case of the assessee, the first day of the financial year would be 01.04.2002, whereas the registration was granted w.e.f. 31.03.2003 by the Commissioner of Income Tax. Aggrieved with the above discrepancy, the assessee filed petition under Section 154 of the Act before t .....

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oner of Income Tax, Ghaziabad has passed the order u/s 12AA of the Income Tax Act, 1961 after taking into consideration of the Hon ble ITAT direction and written submission of applicant. I do not find any mistake apparent from the record which can be rectified u/s 154 of the Income Tax Act, 1961, therefore the applications moved u/s 154 of the Income Tax Act, 1961 to be rejected. 4. Hence, the rectification applications dated 24.11.2014, 09.12.2014 & 21.01.2015 are hereby rejected. 2.3 Aggri .....

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ing orders may appeal to the Appellate Tribunal against such order- (a) …………….. (b) ………………. (ba) ……………. (c) an order passed by a [Principal Commissioner or] Commissioner under section 12AA or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 271 or under section 272A or an order passed by him under section 154 amending his order under section 263 .....

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the order under Section 12AA of the Act passed by the Principal Commissioner or Commissioner is since appealable before the Tribunal, any rectification passed to that order is naturally eligible for appeal before the Tribunal. 6. We have heard the rival submissions and perused the material on record. It is undisputed that the order of rectification to the order passed under Section 12AA of the Act is not in the list of the orders appealable to the Tribunal. The legislature has included the orde .....

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to note the observations of the Tribunal, Delhi Bench in the case of Pradeep Singh Vs. Deputy Commissioner of Income Tax, reported in (2005) 93 ITD 0514. The Tribunal in the above case relied on the decision of Hon ble Gujarat High Court in the case of Mandal Ginning & Pressing Co. Ltd. Vs. Commissioner of Income Tax (1973) 90 ITR 332 (Guj.) and on the other High Court s decisions, including the decision of Hon ble Jurisdictional High Court in the case of Commissioner of Income Tax Vs. Maha .....

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me Tax Act, 1922?" 8. Section 35(1) of 1922 Act is analogous to Section 154 of 1961 Act. Under the 1922 Act, no appeal was provided under section 30 against the order of rectification under section 35(1). The contentions on behalf of assessee before the High Court was two folds as is apparent from page 335 of the report and the same is being reproduced for the benefit of this order:- "The assessee relied upon two clauses of sub-section (1) of section 30 in support of his contention tha .....

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ent of the assessee was based on the former clause and reliance was placed on the latter clause only in the alternative." 9. The Hon ble Gujarat High Court after considering various judgments rejected the said contentions of the assessee and held that no appeal lies against the order of Assessing Officer under section 35(1). Their Lordships observed at pages 335-336 as under:- "It is clear, on a plain reading of section 30, sub-section (1), that a right of appeal is given by that sub-s .....

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d or the amount of tax determined without reference to the section under which the assessment or determination may have been made. If the legislature wanted to give a right of appeal against every assessment of income or determination of tax, there is no reason why the legislature should have added the words "under section 23" and specifically enacted the source of the power under which the assessment of income or the determination of tax should have taken place in order that the asses .....

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ion 30, sub-section (1). Having said so much on the interpretation of the words used in the clause, we may now proceed to consider what is the nature of a proceeding for rectification and what happens when an order of rectification is made rectifying an assessment under section 23." 10. The perusal of the above judgment clearly shows that unless separate appeal is provided against the order of rectification, no appeal would lie against such order though such order rectifies the order of ass .....

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