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TMI Blog2021 (10) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... written submission properly and also against law, facts and natural justice. 2. The Commissioner of Income Tax (Appeals), National Faceless Appeal Centre failed to consider the issue on Capital Gain on sale of property as per law & facts. (Ref: Statements of Facts - I, 3rd & 4th Para) 3. He ought not to have confirmed the order of Assistant Commissioner (CPC) adding Rs. 21,48,579/- as Capital Gain. II 1. The Commissioner of Income Tax (Appeals), National Faceless Appeal Centre went wrong in confirming the disallowance the amount of account u/s 11(2) Rs. 6,39878/- for non-filing the Form 10 with Assistant Commissioner within the stipulated time, (Ref: Statements of Facts- II, to 8 Para) 2. The Commissioner of Income Tax (Appeals), National Faceless Appeal Centre ought to have considered the Written Submission. (Encl:7, Page:24 to 40) Ref: i). Notice / Communication reference Id: 100000027308243 is filled on 01.07.2019 and Acknowledgement No: 26061911352754 ii) Notice / Communication reference Id: 100000029607112 is filled on 15.07.2019 and Acknowledgement No: 11071911386398 iii) Notice / Communication reference Id: 100000032372990 is filled on 11.11.2019 and Acknowl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has rejected arguments taken by the assessee on the ground that there is no error in adjustment made by the Assessing Officer to total income computed by the assessee while processing return u/s.143(1) of the Act, because unless the assessee attach Form No.10 along with return, the Assessing Officer cannot give benefit of accumulation of income u/s.11(2) of the Income Tax Act, 1961. The learned CIT(A) has also distinguished case laws relied upon by the assessee in the case of CIT VS. Sakal Relief Fund (2017) 248 taxmann 31/81 by holding that in the said case Form No.10 was filed during the reassessment proceedings and hence, the Court has directed the Assessing Officer to accept Form No.10, whereas in the present case no such assessment proceedings and hence, while processing return u/s.143(1), the Assessing Officer has to consider material on record, as per which Form No.10 was not attached with return of income filed by the assessee and hence, there is no error in computation of income made by the Assessing Officer, while issuing intimation u/s.143(1) of the Act and thus, rejected arguments of the assessee and confirmed additions made by the Assessing Officer. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(1) deals with summary adjustment, as per which, where a return has been filed u/s.139, such return shall be processed in the following manner. As per said section, except as provided under Explanation, no adjustment can be made towards total income reported by the assessee. Further, adjustments provided under Explanation to section 143(1) are that only prima-facie adjustments which can be made on the basis of return filed by the assessee, without going into examine any other evidences. The proviso further specifies that no such adjustment shall be made unless an intimation is given to the assessee of such adjustments either in writing or electronic mode. In this case, admittedly no such intimation was given to the assessee before making adjustment towards capital gain and accumulation of income u/s.11(2) of the Income Tax Act, 1961. Therefore, on this count itself adjustment made by the Assessing Officer towards capital gain and accumulation of income u/s.11(2) of the Income Tax Act, 1961 deserves to be deleted. 9. Be that as it may, but fact remains that the assessee has admitted Nil capital gain income from transfer of property by claiming exemption u/s.11(1A) of the Act for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen next question that needs to be considered is whether the Assessing Officer can make adjustments to total income for non-submission of Form No.10 along with return of income. In our considered view, except as provided under Explanation to section 143(1), no adjustments can be made to total income. In this case, the Assessing Officer has made adjustment to total income by rejecting accumulation of income u/s.11(2) and said adjustment is not in accordance with law. It is also an admitted fact that an appeal being continuation of original proceedings, appellate authority has co-terminus and co-extensive powers that of the Assessing Officer. Therefore, when the assessee has filed Form No.10 before the CIT(A),NFAC, he ought to have admitted Form No.10 filed by the assessee to consider accumulation of income u/s.11(2) of the Income Tax Act, 1961. This view is supported by decision of the Hon'ble Calcutta High Court in the case of CIT Vs. Hardeodas Agarwalla Trust reported in 198 ITR 511, where it was held that appeal being continuation of original proceedings, appellate authority has power to accept Form No.10 and direct the Assessing Officer to redo assessment. We further noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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