Smt. Parmeshwari Devi, Village & PO- Lalasi, VIA, Khuri Bari, Sikar V. CPC, Bengaluru, Bengaluru

ITA 216/JPR/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7687 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 27-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; TDS; Set aside
• Section: 154; 143(1)

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “SMC”, JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa MkW- ehBk YkkYk ehuk ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & DR. MITHA LAL MEENA, AM vk;dj vihy la-@ITA No. 216/JP/2021 Assessment Year: 2017-18 Smt. Parmeshwari Devi, Village & P.O.-Lalasi, VIA, Khuri Bari, Sikar. cuke Vs. CPC Bengaluru. PAN No.: ALIPD 3132 F vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/01/2022 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 28 /02/2022 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order of the ld. National Faceless Appeal Centre (NFAC), Delhi dated 31/08/2021 for the A.Y. 2017-18. The assessee has raised following grounds of appeal: “1. The Ld. CIT(A), NFAC has erred on facts and in law in holding that assessee having not filed an appeal against intimation u/s 143(1), he cannot file an appeal against order u/s 154 for the issues for which the original cause of action has arisen u/s 143(1) itself. 2. The Ld. CIT(A), NFAC has erred on facts and in law in ignoring that family pension income of Rs.4,38,132/- has been included by the assessee as income from other sources and arrear salary of Rs.2,30,950/- for FY 2013-14 to 2015-16 which is received by ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 2 the assessee after the death of her husband is not chargeable to tax in her hands. 3. The Ld. CIT(A), NFAC has erred on facts and in law in holding that there is no mistake apparent from record at the stage of section 154 ignoring that it is a fundamental rule of taxation that the same income cannot be assessed twice and an income which do not accrue or arise to the assessee cannot be taxed in her hands.” 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. 3. The brief facts of the case are that the assesse the assessee is a widow lady and is wife of Late Sh. Ram Kumar Singh Meel (Senior Librarian, Secondary Education Department). She filed her return of income for the year under consideration on 18.03.2018 declaring total income of Rs.8,27,040/-. A notice for proposed adjustment was issued u/s 143(1)(a) of the Income Tax Act, 1961 (in short, the Act) to the assessee on 17.07.2018 with error description that there is inconsistency of Rs.6,69,082/- between salary income in return and as appearing in Form 26AS. In response to the same, the assessee filed online reply explaining that out of Rs.6,69,082/-, an amount of Rs.4,38,132/- is already offered for tax under the head income from other sources and the balance Rs.2,30,950/- represents salary of her husband Sh. Ram Kumar Singh for the period 16.11.2013 to 21.03.2015 who expired on 22.03.2015. Against the above reply, a communication dated 28.12.2018 ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 3 was issued to the assessee stating that the multiple reasons furnished by her for the variation are unacceptable. Thereafter, an intimation dated 08.03.2019 was issued u/s 143(1) of the Act determining the total income at Rs.14,96,120/- (8,27,040+6,69,082). Against the above intimation, assessee filed a rectification request on 17.09.2019. Thereafter rectification order u/s 154 of the Act dated 20.11.2019 was issued and in view of the advice given by the department, assessee again filed a rectification request on 15.02.2020 which was rejected by the AO(CPC) vide rectification order u/s 154 dated 28.02.2020 by making addition of Rs.6,69,082/- under the head salary income. 4. Being aggrieved by the order of the A.O., the assessee filed appeal before Ld. CIT(A) against the said intimation u/s 154 dated 28.02.2020. The Ld. CIT(A), however, held that the original cause of action for the issues under consideration in the present appeal lies at the stage of intimation u/s 143(1) and not at the stage of 154. Having not filed an appeal against order u/s 143(1), the assessee has tried to take a backdoor entry by filing an appeal against the order u/s 154 for the issues for which the original cause of action had already arisen at the stage of intimation u/s 143(1) itself. In any case there is no mistake apparent from record at the stage of 154. If at all there is any grievance of the assessee that would be only at the stage of 143(1) which cannot ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 4 be adjudicated herein. Accordingly, the Ld. CIT(A) dismissed the appeal filed by the assessee. Against the said order of the ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 5. All the grounds raised by the assessee in this appeal are interrelated and interconnected, therefore, we thought it fit to dispose off through this common order. 6. We have considered the rival contentions and carefully perused the material placed on record. From perusal of the impugned order, we observed that the only reason given by the Ld. CIT(A) for dismissing the appeal filed by the assessee is that the assessee has filed an appeal against intimation u/s 154 of the Act dated 28.02.2020 and not against intimation u/s 143(1) dated 08.03.2019 in which the adjustment of Rs.6,69,082/-was made. In this regard, it was categorically submitted by the ld. Counsel for the assessee since the adjustment made by CPC were apparent mistake, therefore, the assessee filed rectification request on 17.09.2019. On this rectification request, an order dated 20.11.2019 was passed wherein the assessee was advised to again file online rectification request if the assessee is not satisfied with the order u/s 154 of the Act. Since according to the ld. AR, the assessee was not satisfied with the ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 5 order U/s 154 of the Act, therefore, as required in the said order, again a rectification request was filed on 15.02.2020 but the same was also rejected vide order u/s 154 of the Act dated 28.02.2020. Therefore, in these circumstances, it was categorically submitted that when CPC, Bangalore itself has advised the assessee to file rectification request in case if the assessee is not satisfied with the order u/s 154, then in that eventuality, the finding of ld. CIT(A) that the appeal filed by the assessee is barred by limitation and thereby not deciding the appeal on merit is bad in law. 7. After having meticulously gone through the submissions of both the parties and facts of the present case, we also found that since the adjustment made by CPC were having apparent mistake, therefore, the assessee filed rectification request and while passing the order dated 20.11.2019, the assessee was advised to again file online rectification request if the assessee is not satisfied with the order u/s 154 of the Act. Since according to the ld. AR, the assessee was not satisfied with the order U/s 154 of the Act and accordingly, as per the records, the assessee again filed rectification request on 15.02.2020 which was also rejected on 28.02.2020. Therefore, we are concur with the submission of the ld. AR that when CPC Bangalore itself has advised the assessee to file the rectification request in case if the assessee is not satisfied with the ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 6 initial order U/s 154 of the Act, thus, the finding of the ld. CIT(A) that appeal filed by the assessee is barred by limitation is not sustainable in the eyes of law. We are further of the view that a legitimate claim of the assessee cannot be denied on technicalities as it is a settled proposition of law that technicalities should not come in way in imparting the substantial justice. 8. In our view, the justice is a virtue which transcends all harriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 7 Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. In view of the above observation, we had drawn strength from the decision of the Hon'ble Supreme Court in case of Nagaraj & Others Vs. State of Karnataka & Another 4 SCC 595, therefore, keeping in view the above observation, we set aside the order of the ld. CIT(A) by holding that the ld. CIT(A) ought to have decided the appeal on merits instead of adopting a hyper technical view. 9. Now coming to the merits of the case, we are of the view that the husband of the assessee Late Sh. Ram Kumar Singh Meel expired on 22.03.2015. After his death assessee received Rs.6,69,082/- comprising of family pension of Rs.4,38,132/- and arrears of salary of her husband of Rs.2,30,950/-. Explanation for both the amount is as under:- Family Pension Rs.4,38,132/- : This amount was received by the assessee as family pension which is taxable under the head Income from Other Sources. The same is already shown as income in the return as family pension under the head income from other source as evident from computation of total income and the same is available at page No. 5 of the paper book. Thus addition to the extent of Rs.4,38,132/- tantamount to double addition. ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 8 Arrear of salary of husband Rs.2,30,950/- : This amount represents arrear salary of Late Sh. Ram Kumar Singh Meel, husband of assessee for FY 2013-14, 2014-15 and 2015-16 (upto the date of death, i.e. 22.03.2015) which was received by the assessee after his death on 19.01.2017 which is available at page No. 31 of the paper book after deduction of TDS (230950-23096), i.e. in FY 2016-17. Year wise bifurcation of amount of Rs.2,30,950/- is as under:- S. No. Financial Year Amount (in Rs.) 1. 2013-14 80,262/- 2. 2014-15 1,17,938/- 3. 2015-16 32,750/- Total 2,30,950/- The above salary income was earned by Sh. Ram Kumar Singh Meel during the period when he was alive and therefore the same is otherwise not taxable in the hands of assessee. Further even if this salary is included in the hands of the deceased in the respective year, then also no tax is payable as the income remained below taxable limit or otherwise tax due on the return is paid by way of TDS. Considering the totality of the facts and circumstances of the case, we found merit in the contention of the ld. AR and the ld. DR has not controverted or rebutted the facts and submissions made by the ld. AR by submitting any concrete ITA 216/JP/2021_ Smt. Parmeshwari Devi Vs CPC 9 evidence, therefore, we direct the A.O. to delete the addition so made and confirmed by the ld. CIT(A). We direct accordingly. 10. In the result, this appeal of the assessee is allowed. Order pronounced in the open court on 28 th February, 2022. Sd/- Sd/- ¼MkW- ehBk YkkYk ehuk½ ¼lanhi x®lkÃa½ (DR. MITHA LAL MEENA) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 28/02/2022 *Ranjan vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Smt. Parmeshwari Devi, Sikar. 2. izR;FkhZ@ The Respondent- The CPC, Bengaluru. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr¼vihy½@The CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 216/JP/2021) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar