TMI Blog2021 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... rrecting the defect. The tax authorities cannot be seen to violate the Statutory time lines at their whims and fancies. The disposal of the appeal in this manner cannot be upheld. Similarly the reasoning that, The manual application signed by the Counsel, is in itself not regular unless it is by way of a reminder with regards to the online application filed also does not address the issues at hand. The issue remains open since it is unclear was it treated as a reminder or a substitution. , in case there were any deficiencies in the rectification application filed by the assessee, then the defect should have been notified and opportunity to correct the same should have been provided. The assessee cannot be subsequently burdened on account of lapses etc. which were never pointed out. The primary issue which thus, remains for consideration is can the rectification order be said to have been passed within the statutory timeline. On the facts as available on record, it appears that the answer is no. However, since the issue has been deflected/obfuscated, it is remanded back for consideration afresh. What would constitute record? - what would constitute the record for a case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess of law envisages an opportunity of fair representation. As evident from the impugned order assailing which specific ground invoking principles of natural justice has been taken that the right to be heard was not waived off by the assessee by mere making available of the written submissions to the First Appellate Authority. No doubt a party may choose to waive the right to be heard and instead choose to rely only on written submissions - it is the duty of the adjudicating authorities to ensure that the waiver so made is intelligently made and with full knowledge and understanding i.e. with the foreknowledge that the right to be heard 'exists. The record is silent on this aspect. In the facts of the present case there is nothing on record to show that the right to be heard was consciously and knowingly waived. The order cannot be upheld and deserves to be set aside. The impugned order is set aside in toto and restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law first on the maintainability of the order itself after giving the assessee a reasonable opportunity of being heard - Appeal of the assessee is allowed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ₹ 1,24,800/- from the 'business and profession' and in the year under consideration declared a total income of ₹ 18,91,963/- after deductions under Chapter VI-A. Total tax and interest of ₹ 3,83,065/- was paid. The said return was processed u/s. 143(1) of the Income Tax Act, 1961 on 09.05.2017 and regular demand of ₹ 3,45,500/- was raised after charging of interest u/s. 234A, 234B and 234C as due date for filing of return for the year under consideration was 07.09.2015. Thereafter, the assessee filed an application u/s. 154 seeking rectification stating that in the Financial Year, the assessee had received an amount of ₹ 27,73,603/- (including interest amount of ₹ 3,14,385/-) on account of compulsory acquisition of land by the Government. A prayer for rectification was made relying upon Circular issued by CBDT to put in assessee's words, it was submitted: the Circular of CBDT along with original ITR and computation for the A.Y. 2015-16 as well as rectified computation of income and proof of payment for compensation made by the District Magistrate (SDM)-cum-Land Acquisition Collector, Sangrur for consideration and necessary action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,415/- 6. Gross Total Income ₹ 20,16,763/- ₹ 1,32,220/- 7. Deductions(Chapter Vl-A) ₹ 1,24,800/- - 8. Net Total Income ₹ 18,91,963/- ₹ 1,32,220/- 5.2. However, the said request and prayer did not find favour with the AO who held that the assessee intends his case to be decided as per the particulars which were not shown in the return of income. 6. The assessee carried the issue in appeal before the First Appellate Authority where the written submissions extracted in the order also did not find favour with the First Appellate Authority. 7. In the said background, the assessee has invoked the principles of natural justice and equity. 7.1. The record has been considered. Since the grievance appeared maintainable, accordingly, rejecting the adjournment application, the ld. Sr. DR was heard. The appeal, accordingly is being decided ex-parte qua the assessee appellant on merits wherein the ld. DR relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on or before 30.06.2018 and as per record, has been passed on 09.11.2019. The relevant facts available on record in regard thereto are that the rectification application was filed on 01.12.2017 through e-portal. This was transferred to the concerned AO on 05.12.2017 and the order was passed by the AO on 09.11.2018 i.e. after the expiry of six months. The relevant provision setting down the limitation of 6 months under whose shelter the challenge is posed is sub-section (8) of Section 154 which mandated that the AO was bound to pass an order within six months from the end of the month, date on which the application is received by the AO. The provision under discussion is reproduced for the sake of completeness: 154(8) Without prejudice to the provisions of sub-section (7), where an application for amendment under this section is made by the assessee [or by the deductor] on or after the 1st day of June, 2001 to an income-tax authority referred to in sub-section (1), the authority shall pass an order, within a period of six months from the end of the month in which the application is received by it,-- (a) making the amendment; or (b) refusing to allow the claim.] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent and sought rectification. 9.4. In the said background challenge is posed on the grounds that the rectification order wrongly treated the application as not maintainable on the ground that it was filed by the counsel whereas it had been filed by the assessee. The assessee in the detailed note extracted in pages 3 to 6 has put forth the claim that the mistake was brought to the notice of the AO on the instruction of the assessee by the counsel who only acted after the rectification application u/s. 154 was filed electronically by the assessee. It has been assailed that A.O. can't reject the claim simply because the appellant had shown it taxable in the return of income and there is no estoppel against the assessee to claim exemption. 9.5. The assessee has further assailed the action relying upon Article 265 of the Constitution of India pleading that tax can be levied only under the express provision of law and not on account of ignorance or mistake of the assessee. 9.6. Similarly challenge is also posed on the ground that the AO is not justified to dismiss assessee's claim holding that the appellant wants to make a fresh claim on the basis of fresh material as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation online 01-12-2017 through his account on the e-filing portal http//www.incometaxindiaefiling.gov.in vide acknowledgment no. 322201290011217 is a matter of record. That this application was transferred to the A.O. on 05-12-2017 is also verifiable from record. It is my considered view that the rectification application duly e-filed was not disposed of within the statutory time limit and that the application referred to by the AO is a manual application filed later by the Counsel for the appellant which has been disposed of in the impugned order.-The manual application signed by the Counsel, is in itself not regular unless it is by way of a reminder with regards to the online application filed. That the substantive issue is dealt with in the remaining grounds of appeal makes the objections raised in these grounds academic. The appellant succeeds in part on these grounds of appeal. 10. In the light of the above different set of reasoning, the issues raised are being decided under the following sub-issues: i) Limitation ii) What would constitute record? and iii) Can written submissions without a conscious waiver be treated as waive of Right to be heard? 11. LIMITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be e-filed on the e-portal but would also necessarily constitute all the facts and evidences taken into consideration for filing the necessary columns in the e-portal. This would include the orders and documents passed/made available by various other connected authorities as in the facts of the present case, the Land Acquisition Officer. Without getting into the aspect that it is only just and due taxes for the State which ought to be collected, it goes without saying that the limitations of documents only filed on e-portal cannot operate against the citizen taxpayers. The systems set in place for robust tax collection cannot be so used as to deprive the tax paying citizens from getting a fair hearing and seek a proper adjudication on disputed facts. Such an action would be wholly unjustified. The systems and e-portals are still in the process of being fine tuned and still in the process of being perfected. They cannot be presumed to be so sacrosanct and final and thus beyond critical scrutiny. For the purposes of the present proceedings, I will confine myself to holding that every statutory order/decision and relevant facts which went into the decision making of punching the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the eventuality, written submissions of the assessee were found to be insufficient for granting relief and were considered to be not relevant, then the assessee should in all fairness be necessarily confronted with the fact that its claim was not allowable and be given due notice thereof. The purpose being that if the assessee still has something further to say, the opportunity of so saying should have been provided. The arbitrary presumption that the assessee shall have nothing to state cannot be upheld. The due process of law envisages an opportunity of fair representation. It is evident from the impugned order assailing which specific ground invoking principles of natural justice has been taken that the right to be heard was not waived off by the assessee by mere making available of the written submissions to the First Appellate Authority. No doubt a party may choose to waive the right to be heard and instead choose to rely only on written submissions. However, it is the duty of the adjudicating authorities to ensure that the waiver so made is intelligently made and with full knowledge and understanding i.e. with the foreknowledge that the right to be heard 'exists. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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