9911796707
TMI Blog2023 (4) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... n passing the impugned order ex parte without affording sufficient opportunity of hearing and in violation of principles of natural justice on the facts and circumstances of the case. b. The Authorities below failed to appreciate that the additions made in the assessment order passed under section 143(3) of the Act are the mistakes apparent on record in terms of section 154 of the Act on the facts and circumstances of the case. c. The learned CIT(A) erred in law in holding that the additions made in the original assessment order passed under section 143(3) of the Act cannot be contested in the appeal filed against the order passed under section 154 of the Act wherein the earlier additions were reiterated and consequently, passed a perverse order on the facts and circumstances of the case. d. The learned CIT(A) failed to appreciate that since the issues in both the orders passed under section 143(3) and 154 of the Act are same, the former order merges with the latter and accordingly, the learned CIT(A) ought to have adjudicated the appeal on merits under the facts and circumstances of the case. 4. Grounds on Merits: a. The learned Assessing Officer erred in law in mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined by the learned Assessing Officer on the facts and circumstances of the case. 6. The Appellant craves to add, alter, modify, substitute, change and delete any or all of the grounds and to file a paper book at the time of hearing the appeal. 7. In the view of the above and other grounds that may be urged at the time of the hearing of appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity." 2. The Ld.AR at the outset submitted that the present appeal has been filed by assessee with a delay of 142 days. Assessee has filed an application for condonation of delay dated 21.03.2023 along with an affidavit of the Managing Director. It is stated therein that assessee had received the order by email on 15.07.2022 which was not perused by the staff of the assessee and subsequently when it came to the notice of the present counsel while verifying the status of other matters in the month of February, that the necessary steps were taken to file the present appeal. The Ld.AR submitted that the notices issued by the Ld.CIT(A) also went unnoticed by the assessee thereby resulting into non-appearance before the first appellate authority. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer issued the notice u/s 143(2) and Notices u/s 142(1) on various dates, which have all been complied with. 3.2 The Ld.AO completed the assessment u/s 143(3) on 17.5.2021 determining the income at Rs.34,50,31,775/-. The variation in the returned income and the assessed income is on account of the following: Sl. No. Particulars Amount A Addition on account of uncertified bills to be treated as turnover on account of the alleged revenue recognition 29,39,56,585=00 B Addition on account of Employees' contribution to Provident Fund and Employees State Insurance, paid within the due date for filing the return of income 9,30,900=00 C TOTAL ADDITIONS MADE 29,48,87,485=00 3.3 Being aggrieved by order of assessment, the assessee moved an application under Section 154 of the Act on 2.9.2021, wherein it was brought to the notice of the Ld.AO that both the additions made in the assessment order are apparently unsustainable. The assessee was also aggrieved that credit for TDS & TCS was granted to the extent of Rs.1,98,29,039/-, as against the claimed credit amounting to Rs.3,32,60,165/-, appearing in Form 26AS. 3.4 With regard to the first addition, it was pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken up by AO as such while computing the taxable income. 4.1 The appellant filed a rectification application before AO by contending that the addition/disallowance had wrongly been made and as such unsustainable. The appellant gave detailed reasoning for the same. However, the AO did not accept this argument of the appellant and rejected the said rectification application by holding that there wasn't any mistake apparent from record. 4.2 During appellate proceedings the appellant has made detailed submissions, which are available in the grounds of appeal 5 to 13 to this appeal. The same have duly been considered. In rectification the most important aspect which needs to be looked into is whether the rectification sought would fall within the scope of Section 154 or not. Scope of rectification is limited to correcting error of fact or error of law on the basis of material available on records. 4.4 Now on the issue of addition of Rs 23,39,56,585/- to the income of the appellant, it is noted that the AO has given a detailed reasoning for making such an addition. If the appellant considers that the AO is incorrect in doing so, the remedy lies in filing an appeal agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not gone into merits and has held there is no mistake apparent on record u/s. 154 with respect to the impugned issue. From the perusal of facts in our considered view, the addition made cannot be considered as a mistake apparent on record and therefore we see no reason to interfere with the decision of the CIT(A) to this extent. 5.3.1 In sofar as the disallowance in respect of the alleged employees contribution to the EPF/ESI is concerned, it is a mistake apparent on record that, the Ld.AO incorporated the addition while passing the assessment order without considering or calling for the details during the assessment proceedings. Even otherwise when the assessee's case was picked up for complete scrutiny, there was no need to issue an intimation u/s. 143(1)(a) of the act separately, disallowing the employees contribution towards ESI/PF deposited beyond the due date by the assessee. We therefore allow the present appeal only in respect of Ground no. 4(d). The assessee is granted liberty to raise the disallowance before the Ld.CIT(A) in the appeal that is pending for disposal before the first appellate authority against the assessment order dated 17.05.2021. In the result, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
