Niyatiben Alpesh Parikh, Ahmedabad V. The Dy.CIT, Circle-1(1)(1), Ahmedabad

ITA 444/AHD/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1752 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-05-2024
• Assessment Year: 2021-2022
• Appeal Filed On: 11-03-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 246; 143(1); 250

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Shri TR Senthil Kumar, Judicial Member And Shri Narendra Prasad Sinha, Accountant Member Niyatib en Alpesh Parikh , Ah medabad PAN: AB JP P 8713D (Appellant) Vs The Dy. CIT, Cirlce-1(1)(1 ), Ah med abad (Resp ondent) Asses see b y : Shri Jyotish M . Sha h, A. R. Revenue by : Smt. Trupti Patel, Sr. D. R. Date of hearing : 09-05 -2 024 Date of pronouncement : 07-06 -2 024 आदेश/ORDER PER : NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER:- The present appeal is filed by the assessee against the order u/s. 250 dated 12-01-2024 of Additional/Joint Commissioner of Income Tax (Appeals)-5, Mumbai, (in short ‘the JCIT(A)’) for Assessment Year 2021-22. ITA No. 444/Ahd/2024 Assessment Year 2021-22 I.T.A No. 444/Ahd/2024 A.Y. 2021-22 Page No. Niyatiben Alpesh Paresh vs. Dy. CIT 2 2. The brief fact of the case is that the assessee has filed her return of income for A.Y. 2021-22 declaring total income of Rs. 4,89,490/- and as per return refund of Rs. 5,99,320/- was due to the assessee. The return was processed by the CPC and as per intimation u/s. 143(1) dated 29-03-2022 and refund of Rs.6,35,280/- was determined. However, the assessee did not receive the refund as determined in the intimation. Subsequently, the assessee had received an intimation u/s. 245 of the Act dated 17 th November, 2023 whereby the net amount refundable to the assessee was determined at Rs. 1,89,035/- only. Aggrieved with the reduction in refund, the assessee had filed an appeal before the CIT(A) which was decided vide the impugned order. The ld. JCIT(A) held that the appeal of the assessee was not maintainable u/s. 246 of the Act. Now the assessee is in appeal before us. 3. In the present appeal, the assessee has raised the following grounds:- “1. Invalid & Bad Order 1.1. The Order passed by ADDL/JCIT (A)-5 MUMBAI dated 18-01-2024 is invalid and bad in law on facts and law. 1.2. The ADDL/JCIT erred in dismissing appeal, holding that as no adjustment has been made by AO CPC in the said intimation u/s 143(1), it is beyond the preview of section 246. The appellant submits that ADDL/JCIT should have, alternatively considered that it is denial of refund and appeal lies under section 237. 1.3. The ADDL/JCIT erred in not giving Virtual hearing though requested. It is violating principles of natural justice. 1.4. The ADDL/JCIT erred in not considering facts that refund is adjusted without issuing notice u/s 245. 1.5. The ADDL/JCIT erred in passing order without dealing with submission filed and judgment relied. It is non-speaking order. 2. Without Prejudice 2.1. The ADDL/JCIT erred in dismissing appeal without taking care to look at the mechanical adjustment made by AO in communication dated 11-11-2023, without application of mind in adjusting refund. 2.2. The appellant submits that ADDL/JCIT should have taken note of CBDT Circular No. 14 dated 11-04-1955 followed by various Judicial pronouncement that department is duty bound to give what is correct. I.T.A No. 444/Ahd/2024 A.Y. 2021-22 Page No. Niyatiben Alpesh Paresh vs. Dy. CIT 3 3. The appellant craves for leave to add, alter or amend all or any grounds of appeal before final hearing of appeal.” 4. Shri Jyotish M. Shah, ld. A.R. of the assessee submitted that though the intimation u/s. 143(1) was dated 29 th March, 2022 the refund was issued by the CPC on 30 th Nov, 2023. Therefore, the refund as determined by the CPC was withheld for more than 19 months without following the due process of law. He further pointed out apparent inaccuracies in the demand as adjusted vide the intimation u/s. 245 dated 30 th October, 2023 of the CPC. The ld. A.R. further submitted that the Ld. JCIT(A) was not correct in dismissing the appeal on technical grounds without deciding the issue on merit. 5. The ld. D.R. on the other hand submitted that he has no objection if the matter is set aside to the file of Assessing Officer to verify the correct facts about the outstanding demand and thereafter decide the matter. 6. We have carefully considered the rival submissions. It is found that the ld. JCIT(A) has taken a hyper technical approach by dismissing the appeal on the ground that no adjustment was made by the CPC in the intimation u/s. 143(1) dated 29-03-2022. If the refund as determined by the CPC in the intimation was not issued to the assessee and was withheld for undue long period without any valid reason, the assessee had a genuine grievance and same was required to be properly addressed. It is found from the copy of intimation u/s 143(1) of the Act that the CPC had determined refund of Rs. 6,35,280/-. However, a refund of Rs.1,89,035/- only was determined in the subsequent intimation u/s. 245 dated 11 th Nov, 2023 after I.T.A No. 444/Ahd/2024 A.Y. 2021-22 Page No. Niyatiben Alpesh Paresh vs. Dy. CIT 4 adjustment with the existing demand. A copy of intimation u/s. 245 is reproduced below:- Status Refund adjusted Against demand(s) Reference Intimation u/s 245 CPC/2122/G8a/208374776 dated 31-10-2023 Date of Communication 11-Nov-2023 Your return for the A.Y. 2021-22 has been processed on date 29-03-2022 determining a refund of Rs. 635280. The said refund is adjusted against the following outstanding demand(s). Sl. N o. A.Y. Demand Amount Demand Identification Number Order Date Sect ion Taxpayer’s Response AO’s Response Amount of Adjust ment 1 201 6- 17 172 20162016370465 18740T 15-10- 2016 143 1a No Response Collecta ble 373393 2 201 4- 15 28330 20232016372160 26771T 24-12- 2016 143 3 No Response Collecta ble 2600 3 201 6- 17 55995 20232014372160 26605T 10-11- 2023 220 (2) No Response No Response 55995 4 201 4- 15 14257 10-11- 2023 220 (2) No Response No Response 114257 Net Amount Refundable 189035/- Refund Sequence No 9387968815 6.1 It appears that no opportunity was provided to the assessee before passing of adjustment order u/s 245 of the Act by the CPC, which is against the principle of natural justice. Further, it is found from the above intimation that the demand for A.Y. 2016-17 (serial no. 1) was Rs. 172/- only whereas the amount of adjustment made was Rs.3,73,393/-. There is similar discrepancy in the amount of demand and the amount of adjustment in serial no. 2 as well. These discrepancies were required to be addressed which are apparent from the intimation u/s. 245. Further, it is also not evident as to whether any interest u/s. 244 was allowed to the assessee. I.T.A No. 444/Ahd/2024 A.Y. 2021-22 Page No. Niyatiben Alpesh Paresh vs. Dy. CIT 5 6.2 In view of the above facts and discrepancies, the matter is set aside to the jurisdictional Assessing Officer to re-concile the figure of actual demand and the amount of adjustment as made in the intimation u/s. 245 dated 11 th Nov, 2023. The assessee may be allowed a proper opportunity of being heard in the matter as contemplated u/s 245 of the Act. 7. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open court on 07-06-2024. Sd/- Sd/- (TR SENTHIL KUMAR) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 07/06/2024 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद