SMT. MONICA CHATTOPADHYA, MUMBAI V. ACIT CIRCLE-28(2), MUMBAI

ITA 2369/MUM/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9091 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Assessment Year: 2015-2016
• Appeal Filed On: 16-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Value adopted by valuation officer; Rectification of order; Cost of acquisition; Fair market value; Difference of opinion; Valuation report; Change of opinion; Set aside; Capital Gains
• Section: 54; 154; 143(3); 55A; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 321, Reena Complex R.N. Road, Vidyavihar (W) Mumbai – 400086 PAN: AJIPC1975D v. ACIT – Circle – 28(2) Tower No. 6 Vashi Railway Commercial Complex Navi Mumbai-400703 (Appellant) (Respondent) Assessee by : Malav P. Sheth Department by : Mahita Nair Date of Hearing : 05.07.2022 Date of Pronouncement : 08.08.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short “Ld.CIT(A)”] dated 06.11.2021 for the A.Y.2015-16. 2 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 2. Brief facts of the case are, the assessment of the assessee was completed u/s. 143(3) of Income-tax Act, 1961 (in short “Act”) on 12.12.2017 determining the total income at ₹.2,80,82,450/- subject to receipt of valuation report from District Valuation Officer (DVO), Income Tax Department, Hyderabad. In the present case the assessee derived income from long term capital gain of ₹.2,51,18,239/- after claiming exemption of ₹.1.5 crores u/s. 54 of the Act from the sale of immovable property (being land and building) which was jointly held with Shri Sandeep Chatterjee (50% ownership). 3. During the assessment proceedings in order to ascertain the value of the property, a reference was made to the DVO, Hyderabad for valuation of the property located at Plot No. 252, Jubilee Hills Cooperative Housing Society, Hyderabad. Subsequently valuation report from the DVO dated 08.10.2018 was received wherein the construction cost of the immovable property at Plot No. 252, Jubilee Hills, Hyderabad is valued at ₹.2,51,500/- against the claim of the assessee at ₹.8 lakhs. Accordingly, notice u/s. 154 of the Act dated 11.04.2019 was issued to the assessee to recompute the long term capital gain in view of the valuation report received from the DVO Hyderabad. 3 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 4. In response assessee filed reply vide letter dated 6.05.2019 wherein assessee objected to the proposed amendment to the Assessing Officer. After considering the reply of the assessee, Assessing Officer rejected the same with the following reasons: - “a. The DVO could not assess the building as the same was demolished. Therefore, standard rates approved by CBDT were adopted by the DVO based on the details taken from the valuation report of N. Shiva Shanker dated 01.04.2014 which was submitted by the assessee only. b. "The Plinth Area Rates method with approved cost index" has been adopted by the DVO which is approved by CBDT and the DVO has also given detailed reasons for adopting the same method in this case. c. The contention of the assessee that the property is located in a posh area where standard rates do not apply is misplaced and lacks merit. As evident from the report of the DVO, the plinth area rates have been enhanced on the basis of Weighted Average Cost Index worked out for the locality based on the then prevailing market rates of labour and material. Hence, this contention of assessee is rejected. d. The contention of the assessee that the valuation report of Shri N. Shiva Shanker is totally ignored by the DVO is also not correct. In fact the construction details and other broad specifications have been taken by the DVO from the report of Shri N. Shiva Shanker to arrive at the construction cost of Rs. 2,51,500/- 5. Accordingly, he passed rectification order u/s. 154 of the Act. He calculated the taxable long term capital gain as under: - Particular (Rs.) (Rs.) Sale consideration 8,84,99,999/- Less: Land Cost (1981 -82) 6967*1024/100 71.342/- Less: Construction cost (1981-82) 2,51,500*1024/100 25,75,360/- 4 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya Particular (Rs.) (Rs.) LTCG 8,58,53,297/- Share of LTCG @50% 4,29,26,649/- Less: Exemption u/s. 54 (29.08.2014) 1,50,00,000/- Taxable LTCG 2,79,26,6497- 6. Based on the above capital gain calculation, total income of the assessee is determined as under: - Total income as per order dated 12.12.2017 Rs. 2,80,82,450/- Add: On account of enhanced LTCG (Rs. 2,79,26,649/- minus Rs. 2,51,18,329/-) Rs. 28,08,320/- Revised total income Rs.3,08,90,770/- 7. Aggrieved assessee preferred an appeal before National Faceless Appeal Centre, Delhi. It was submitted that during appellate proceedings assessee had submitted valuation report from Government Approved valuer Shri N. Shiva Shanker giving the fair value of land and building as on 01.04.1981 and submitted that fair market value in the valuation report by substituting for cost of construction and computing capital gain. However, the Assessing Officer ignored the valuation report by Government Approved Valuer without giving any reason. The Assessing Officer first passed the Assessment Order subject to rectification and he referred the matter to Government Valuation Officer for determining land value and separately construction cost as on 01.04.1981. By the time Government Valuation Officer visited the site, the developer of the 5 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya property had demolished the bungalow and started the new construction. So the Government Valuation Officer estimated the cost of construction on the basis of standard rates and gave his report giving estimated cost of construction of building but remained totally silent on valuation of land. On receipt of the valuation report, Assessing Officer rectified the assessment based on the above said valuation report. 8. Ld.CIT(A) considering the submissions and findings of the Assessing Officer in the 154 order then found that the claim of the assessee are not to be correct and observed that the DVO could not assess the building as the same was demolished. Therefore, standard rates approved by CBDT were adopted by DVO based on the details taken from valuation report of Shri N. Shiva Shanker dated 01.04.2014 which was also submitted by the assessee. The plinth area rates method with approved cost index has been adopted by DVO which is approved by the CBDT and the DVO has also given detailed reasons for adopting the same method. The contention of the assessee that property is located in a posh area where standard rates do not apply is misplaced and lacks merits. The contention of the assessee that valuation report of Shri N. Shiva Shanker is totally ignored by the DVO is also not correct. Considering the details and other 6 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya broad specification have been taken by the DVO from the report of Shri N. Shiva Shanker arriving at the construction cost of ₹.2,51,500/-. Accordingly, he dismissed the ground raised by the assessee. 9. Aggrieved assessee is in appeal before us raising following grounds in its appeal: -. “1) Addition of Rs. 28,08,320/- on account of enhanced long term capital gains a. On the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming computation of Long Term Capital Gain at Rs. 2,79,26,649/- as against the appellant's computation of Rs. 2,51,18,329/- and thereby confirming the addition of Rs. 28,08,320/-. b. On the facts and circumstances of the case and in law, the learned CIT(A) erred in disregarding, without giving any reason, the Valuation Report of Govt. Approved Valuer that was based on personal inspection of the property which was not demolished at that time and erred in computing Long Term Capital Gain based on Report of Department Valuation Officer which in itself is bad in law. c. On the facts and circumstances of the case and in law, the learned CIT(A) erred in accepting the Valuation of the Department Valuation Officer which did not give proper weightage in estimating cost of construction of a posh building. d. On the facts and circumstances of the case and in law, the learned CIT(A) erred in accepting the valuation at Rs. 2,51,500/- as on 1 April 1981 done by Department Valuation Officer ignoring the fact that that valuation was without taking value of the land and amenities, extra items and services that were valued by the Government Registered Valuer. e. The appellant craves leave to add, to amend, alter/delete and/or modify the above grounds of appeal on or before the final hearing.” 7 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 10. Assessee also filed additional ground it its appeal which are reproduced below: - “1. Additions made u/s 154 being bad-in-law must be deleted. 1.1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in not appreciating that the additions of Rs 28,08,320/- being made by the learned AO under rectification proceedings u/s 154 is without any mistake apparent from records. Thus the additions made being bad-in-law must be deleted. 1.2. Without prejudice to the above and without admitting, on the facts and circumstances of the case and in Jaw, the learned CIT(A) erred in not appreciating that at the most the additions made u/s 154 can be considered as arising out of difference of opinion between the two valuation reports. Thus the additions made being bad-in-law must be deleted. 2. Additions made without considering FMV as on 1.4.1981 must be deleted. Without prejudice to the above and without admitting, on the facts and circumstances of the case and in law, the learned CIT(A) erred in not appreciating that the learned AO ought to have considered the Fair Market Value (FMV) of the property as on 1.4.1981 in order to arrive at indexed cost of acquisition since the case of the appellant falls u/s 55(2)(b). Accordingly the additions made by the learned AO by considering estimated cost of construction as against the FMV as on 1.4.1981 is bad in-law must be deleted. 2. The appellant craves leave to add to, amend or alter, the foregoing ground of appeal.” 11. With regard to admission of the additional grounds, Ld. AR of the assessee submitted as under: - “14. Thus your Honours will appreciate that the additions made by the learned AO u/s 154 considering the Estimated cost as on 1.4.1981 as against FMV as on 1.4.1981 for computing indexed cost of acquisition u/s 48 is without stating any mistake apparent from 8 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya the records. Thus it is our humbly submission that the order passed u/s 154 is without any jurisdiction as there is no mistake apparent from the records which is the basic requirement in order to initiate rectification proceedings u/s 154. Even otherwise, it is submitted that no additions can be made u/s 154 for issues for which there is difference of opinion. There are plethora of Court decisions to this effect wherein additions made u/s 154 have been deleted due to change of opinion. 15. Further your Honours will also appreciate that the learned AO has considered the estimated cost of construction and not the FMV as on 1.4.1981. In this regard, your Honours kind attention is invited to the provisions of section 55(2)(b) wherein FMV is allowed to be substituted at the option of the assessee if the capital asset is acquired prior to 1.4.1981. 16. In the Memorandum of appeal which is filed before the Hon'ble ITAT Mumbai, a) the grounds of appeal do not inter-alia included a challenge of the additions made under the rectification proceedings u/s 154 dehors any mistake apparent from the records of the original assessment proceedings. b) the grounds of appeal do not inter-alia included any ground challenging valuation being made dehors the provisions of section 55(2)(b) of the Act. 17. Thus Your Honours would note that the aforesaid additional grounds of appeal emerge from the order of the learned AO and the learned CIT(A) itself. The issue raised in the additional grounds goes to the root of the assessment and this being a matter of law, needs to be considered. 18. Further all the details are available on record with the learned assessing officer and no new evidences are to be submitted. 19. In this context reliance is placed on the decision of Jute Corporation of India Ltd. v CIT & Another 187 ITR 688 (SC) wherein it has been held that “....... the appellant's claim was based on the settled view of law, the Appellate Assistant Commissioner had jurisdiction to permit the appellant to raise the additional ground. It has been held that in the absence of any statutory provision the Appellate Authority is 9 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed b the Income tax Officer.” 20. Further reliance is also placed on the decision in the case of National Thermal Power Co. Ltd. vs. Commissioner Of Income Tax (1998) 229 ITR 383 (SC) 21. Lastly in the case of CIT v Mahalaxmi Textile Mill Ltd (1967) 66 ITR 710 (SC) it was held that: "There is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the departmental authorities and the Tribunal, and indeed they would be under a duty, to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him." In the said case, assessee's claim before the assessing officer for development rebate on certain items of machinery replaced was rejected and before the Income Tax Appellate Tribunal the assessee successfully raised an alternative plea that the said expense be allowed as current repairs. 22. In view of the above submissions, it is humbly prayed that Your Honours may be pleased to admit the additional grounds in the interest of justice and fair play and to adjudicate the disputes in accordance with law.” 10 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 12. On the other hand, Ld. DR objected to filing of the additional grounds and submitted that this issue was never taken up before lower authorities. 13. Considered the submissions and facts on record, we observe that additional grounds raised by the assessee and the facts are emerged from the order of the Assessing Officer and the issue raised in the additional ground goes to the root of the assessment and this being the matter of law, we proceed to admit the additional ground raised by the assessee. 14. At the time of hearing Ld. AR of the assessee pressed and argued only on additional ground in this regard and submitted as under:- “12. Pursuant to the receipt of the DVO's report, the learned AO issued rectification notice u/s 154 dated 11.04.2019. Copy of the said notice is produced herewith. On perusal of the same, your Honours will note that it did not state details of the mistake apparent from records. 13. Thus Your Honour's will note that the basic ingredient in order to initiate the rectification proceedings u/s 154 was absent rendering the entire proceedings illegal, void ab initio. 14. As stated in the table at para 10 above, the appellant had submitted the valuation report which considered all the relevant factors necessary to arrive at the FMV. 15. In fact the DVO’s report suffered from inherent defects and not the valuation report submitted by the appellant. 11 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya ADDITIONAL GROUND OF APPEAL 1.2 16. As stated in the table at para 9 & 10 above, both the Valuation reports were based on different methodologies. Further both reports are given by Government Registered Valuers who are professional Civil Engineers. Valuation is a process which requires lot of considerations, assumptions and technical aspects and it requires long drawn reasoning to arrive at a particular Value set in the respective reports. 17. Your Honours' will appreciate that at the most the values determined by the said Valuers can be considered as arising out of differential opinions, not free from subjective considerations and highly debatable. It is settled law that rectification proceedings cannot be initiated on mere change of opinions. 18. Reliance is placed on the following JURISDICTIONAL TRIBUNAL decisions wherein on the similar facts, additions have been deleted by rendering proceedings u/s 154 illegal. (i). Shri Kirit Thakker vs ITO - ITA No. 5892/Mum/2010 dated 28.10.2011. (ii). DCIT vs Ms. Vida D'Lima - ITA No. 5976/Mum/2011 dated 08.04.2013. Copy of the said decisions are enclosed at pages J1 to J11 of the paper book. 19. Reliance is placed on the following decisions including Hon'ble APEX COURT and JURISDICTIONAL High Court decisions wherein it is held that proceedings u/s 154 cannot be resorted to for deciding issues which are debatable. T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50 (SC) A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long- drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. Arvind N. Mafatlal v. T.A. Balakrishnan, Dy. CED [1968] 67 ITR 449 (Bom.) A mistake becomes a mistake apparent from the record when it is a glaring, obvious or self-evident mistake. A mistake which has to be 12 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya discovered by a long drawn process of reasoning or examination of arguments on points where there may conceivably be two opinions cannot be said to be a mistake or error which is apparent from the record. J.M. Shah v. J.M. Bhatia, AAC [1974] 94 ITR 519 (Bom.) The plain meaning of the word 'apparent is that it must be something which appears to be so ex facie that it is incapable of argument or debate. The mistake can be regarded as 'apparent' only when it is glaring, obvious or self-evident mistake. ADDITIONAL GROUND OF APPEAL NO.2. 20. The said ground of appeal is reproduced below for your kind perusal. Without prejudice to the above and without admitting, on the facts and circumstances of the case and in law, the learned CIT(A) erred in not appreciating that the learned AO ought to have considered the Fair Market Value (FMV) of the property as on 1.4.1981 in order to arrive at indexed cost of acquisition since the case of the appellant falls u/s 55(2)(b). Accordingly the additions made by the learned AO by considering estimated cost of construction as against the FMV as on 1.4.1981 is bad-in-law must be deleted. 21. On perusal of the comparative working given in para 9 & 10 above, your Honours will note that the Department's Valuation Officer (DVO) in his report dated 08.10.2018 valued the said property on the basis of the Estimated Cost of construction. This can be further corroborated by referring to the following paragraphs of his Valuation report stated below.  Para 1.3 of the said report (page 21 of the paper book): Here the purpose of valuation is stated as for considering the CONSTRUCTION COST AS ON 1.4.1981.  Findings of the Valuer at para 11.1 (page 24 paper book) which shows that the DVO has considered estimated cost of construction instead of the fair market value for the purpose of valuation u/s 55A 22. Further Your Honour's kind attention is also invited to para 1.4 of the DVO's report, page 21 of the paper book, wherein the Section under which the said report is being issued is mentioned as under section 142A. This is completely outside the jurisdiction of the 13 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya DVO as the learned AO has made reference to him u/s 55A as stated in para 4 of the assessment order u/s 143(3), Your Honours will appreciate that Section 55(2)(b) rws 55A(a) requires FMV and not the cost. 23. Also your Honour's kind attention is invited to the fact that the DVO inspected the said property on 04.09.2018 when a reference was made to him on 29.11.2017. Thus he took more than 10 months to inspect the said property after a reference was made to hi by the learned AO. In this regard, your Honour's kind attention is also invited to the fact that the provisions of section 142A(6) mandates that a copy of the report must be furnished within a period of 6 months from the end of the month in which the reference is made. Thus even on a without prejudice and without admitting basis, Your Honours will appreciate that the impugned report of the DVO is in violation of the provisions of section 142A as well and should be outrightly rejected as it has no locus standi. 24. Reliance is placed on the Hon'ble Supreme Court decision in the case of Smt. Amiya Bala Paul vs CIT (2003) 130 Taxman 511 / 262 ITR 407 (SC) wherein it is settled that no reference can be made u/s 55A for determining the cost of construction. Copy of the said decision is enclosed herewith at pages J12 to J28 of the pb.” 15. On the other hand, Ld.DR submitted that Assessing Officer has referred to the DVO order and completed the assessment with clear reference to the absence of the valuation report. Subsequently, upon the receipt of valuation report Assessing Officer adopted the DVO report in rectification proceedings u/s. 154 of the Act. He submitted that the order passed u/s. 154 of the Act are just and proper and relied on the same. 16. Considered the rival submissions and material placed on record, we observe that during the course of assessment proceedings u/s. 143(3) of the Act assessee submitted working of long term capital gain of 14 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya ₹.2,41,93,759/-. The working was submitted after considering the fair market value as on 01.04.1981 u/s. 55(2)(b) of the Act, since the said property was acquired and constructed prior to 01.04.1981. The assessee has substantiated fair market value as on 01.04.1981 by relying on the valuation report of Government Approved valuer Shri N. Shiva Shanker dated 04.04.2014. The said report was submitted to the Assessing Officer and the report is placed on record in Paper Book filed before us. During the course of the assessment proceedings, a reference was made by the Assessing Officer to the DVO u/s. 55A of the Act. Since the reply from DVO was pending and the assessment was time barring, Assessing Officer passed the Assessment Order u/s. 143(3) of the Act on 12.12.2017 by accepting the returned income as assessed income. The Assessing Officer passed Assessment Order subject to the condition of revising the same on receipt of the valuation report from DVO. 17. Before us it was submitted by Ld. AR that Assessing Officer has not stated any reasons for not accepting the valuation report submitted by the assessee anywhere in the Assessment Order passed u/s. 143(3) of the Act. Subsequently valuation report from DVO dated 08.10.2018 was received wherein the construction cost of the immovable property situated 15 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya at Hyderabad is valued at ₹.2,51,500/. Accordingly, the value determined by the DVO is ₹.2,51,500/- by adopting estimated cost method. Whereas assessee submitted the value of ₹.8,00,000/- adopting the fair market value method. Accordingly, Assessing Officer passed the rectification order u/s. 154 of the Act. 18. Before us assessee has challenged the rectification order passed u/s.154 of the Act without there being any mistake apparent from records, the additions made are bad in law and it can only be treated as difference of opinion between the two valuation reports. 19. Before us, Ld. AR relying on following decisions in the case of Shri Kirit Thakker v. ITO in ITA.No. 5892/Mum/2010 dated 28.10.2011 and DCIT v. Ms. Vida D'Lima in ITA.No. 5976/Mum/2011 dated 08.04.2013, submitted that, where it was held, on the similar facts, the additions were deleted by rendering the proceedings made u/s. 154 of the Act as illegal. 20. We observe from the case of Kirit Thakker v. ITO (supra) on the similar facts, wherein Assessing Officer referred the valuation of the property to the DVO for determining the fair market value as on 16 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya 01.04.1981 under the provisions of section 55A of the Act. However, DVO report was not received before completion of the assessment. The assessment was framed without the valuation of DVO, therefore returned income was accepted by the Assessing Officer. Subsequently, Assessing Officer received DVO report which has valued property as on 01.04.1981 less than the value adopted by the assessee. Accordingly, Assessing Officer invoked provisions of section 154 of the Act for re-computation of the long term capital gain on sale of 1/3 rd shares of residential property. Since the facts in the case in hand are exactly similar and the Coordinate Bench held as under: - “6 It is thus clear that while resorting to the provisions of sec. 154, the Assessing Officer re-determined the issue of long term capital gains and particularly, the FMV as on 1.4.1981. It is settled proposition of law that a decision of a debatable point of law or fact cannot be corrected u/s 154 of the I T Act. The issue of determining the FMV as on 1.4.81 is highly debatable one and based on the estimates. Therefore, on such issue, any decision is not free from subjective consideration. It is not the case of the simple overlooking a provision of law or clerical or calculation mistake in computation of income; but it is a point to be decided by application of fact, law and mind as well. Therefore, the issue of FMV as on 1.4.81 does not fall under the expression ‘mistake apparent on record’, which can be rectified without there being any necessity to re-work the matter or to re-appraisal the facts. Further, the DVO report is subsequent development to the completion of the assessment u/s 143(3) and therefore, considering the fresh material on the point of valuation/FMV of the property is beyond the scope of section 154. Under sec. 154 only a mistake obvious and apparent on record can be rectified and not something which can be established by a process of long drawn reasoning on the point on which there may conceivably 17 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya be two opinion possible. Therefore, in the facts and circumstances of the case, the issue of valuation/FMV accepted by the Assessing Officer while passing the assessment order u/s 143(3) cannot be disturbed and re-determined under the provisions of sec. 154, as the said issue, in our view, is not an error or mistake apparent on the face of the order, which can be rectified under the provisions of sec. 154. The Assessing Officer has travelled beyond his jurisdiction while passing the order u/s 154. Accordingly, we set aside the order passed u/s 154 as well as the order of the CIT(A) and delete the addition made by the Assessing Officer while passing the order u/s 154.” 21. Respectfully following the above said decision, we are inclined to set-aside the order passed u/s. 154 of the Act and order of the Ld.CIT(A). Accordingly, additional grounds raised by the assessee are allowed. 22. At this this stage we are not incline to adjudicate the main grounds of appeal raised by the assessee, which at this stage infructuous. 23. In the result, appeal filed by the assessee is partly allowed. Order pronounced in the open court on 08 th August, 2022. Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 08.08.2022 Giridhar, Sr.PS 18 ITA NO. 2369/MUM/2021 (A.Y. 2015-16) Smt. Monica Chattopadhya Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum