ITO, New Delhi V. M/s Apex Recycling Pvt. Ltd., New Delhi

ITA 4736/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1872 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P V GUPTA
• Keywords: Rectification of order; Wrong claim; TDS; Set aside
• Section: 115JB; 143(1); 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A , NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO .4736 /DEL/ 2016 ASSESSMENT YEAR: 2008 - 09 INCOME TAX OFFICER, WARD - 3(1), NEW DELHI VS. M/S. APEX RECYCLING PVT. LTD., PLOT NO. B - 7, PHASE - 1, BADLI INDUSTRIAL AREA, NEW DELHI PAN : AADCA0994M (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P.V. GUPTA, SR.DR RESPONDENT BY NONE ORDER PER O.P. KANT, A.M.: THIS APPEAL BY THE R EVENUE IS DIRECTED AGAINST ORDER DATED 07/06/2016 PASSED BY THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - I, NEW DELHI [IN SHORT THE LD. CIT(A) ] FOR ASSESSMENT YEAR 2008 - 09 IN RELATION TO THE RECTIFICATION ORDER UNDER SECTION 154 OF THE INCOME - TAX A CT, 1961 (IN SHORT THE A CT ) . THE GROUNDS RAISED BY THE R EVENUE IN THE APPEAL ARE REPRODUCED AS UNDER: 1. (I) LD. CIT (A) ERRED IN LAW AND ON FACTS IN TREATING INTIMATION U/S 143(1) AS NON - EST AND IN CANCELLING CONSEQUENT DEMAND RAISED WHILE PROCESSING THE RETURN ON 27.03.2010. DATE OF HEARING 06.06.2019 DATE OF PRONOUNCEMENT 24.06.2019 2 ITA NO .4736/DEL/2016 (II) LD. CIT (A) EXCEEDED HIS JURISDICTION IN ENTERTAINING APPEAL AGAINST INTIMATION WHERE NO ADJUSTMENT OF INCOME WAS C ARRIED OUT RESULTING IN DEMAND. (III) LD. CIT(A) ERRED IN CANCELLING THE DEMAND RAISED ON THE BASIS OF BOOK PROFIT U/S 115JB AS DISCLOSED IN THE SCHEDULE 7 OF RETURN OF THE RETURN OF INCOME FOR A.Y. 2008 - 09. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANYTIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. B RIEFLY STATED FACTS OF THE CASE ARE THAT FOR THE YEAR UNDER CONSIDERATION THE ASSESSEE FILED RETURN O F INCOME DECLARING RE GULAR INCOME OF RS. 7,45,029/ - . THE TAX PAYABLE UNDER SECTION 115JB (MA T PROVISIONS) OF THE A CT WAS COMPUTED AT RS.1,19,38,0 34/ - AND TAX PAYABLE ON INCOME AS PER REGULAR PROVISIONS WAS COMPUTED AT RS.2,23, 505/ - . UNDER THE PROVISIONS OF ACT, T HE ASSESSEE WA S REQUIRED TO PAY GROSS TAX PAYABLE HIGHER OF TH E TAX PAYABLE UNDER SECTION 115 JB OF THE A CT OR REGULAR PROVISIONS OF THE A CT, BUT IN THE P ART IIIB OF THE RETURN OF INCOME COMPUTING THE TAX LIABILITY ON THE TOTAL INCOME, IN ROW 3, THE ASSESSEE WO RKED OUT TAX LIABILITY OF RS.2,23, 505/ - AS AGAINST HIGHER AMOUNT OF RS.1,19,38,0 34/ - . ACCORDING TO THE ASSESSEE, NO INTIMATION UNDER SECTION 143(1) OF THE A CT WAS RECEIVED BY IT AND IT CAME TO KNOW ABOUT THE TAX LIABILITY ONLY THROUGH AN INTIMATION DATED 09/01/201 5 UNDER SECTION 245 OF THE ACT, ISSUED BY THE CENTRAL PROCESSING CENTRE (CPC) , BANGALORE, WHEN REFUND FOR THE ASSESSMENT YEAR 2014 - 15 WAS PROPOSED TO BE ADJUSTED AGAINST THE DEMAND FOR THE ASSESSMENT YEAR 2008 - 09. ON RECEIPT OF INTIMATION UNDER SECTION 245 OF THE A CT, THE ASSESSEE TOOK INTIMATI ON UNDER SECTION 143(1) OF THE A CT FROM THE ASSESSING OFFICER THROUGH AN APPLICATION AND FILED A RECTIFICATION APPLICATION 3 ITA NO .4736/DEL/2016 UNDER SECTION 154 OF THE A CT CONTENDING THAT ORDER UNDER SECTION 143(1) OF THE A CT WAS NEVER COMMUNICATED TO THE ASSESSEE WITHIN THE STIPULATED PERIOD AND THEREFORE , SAID ORDER IS NULL AND VOID IN VIEW OF THE JUDGMENT OF THE HON BLE DELHI HIGH COURT BY OWN M OTI ON VERSUS U NION OF INDIA IN WP(C) NO. 2659/212 DATED 14/03/2013. THE ASSESSING OFFICER R EJECTED THE CONTENTION OF THE ASSESSEE AND HELD THAT CASE OF THE ASSESSEE WAS COVERED BY THE EXCEPTION PROVIDED IN THE JUDGMENT OF THE HON BLE DELHI HIGH COURT DATED 14/03/2013. THE FINDING S OF THE ASSESSING OFFICER ARE REPRODUCED AS UNDER: WITHOUT GOING INTO THE MERITS OF YOUR COUNSEL S CONTENTION THAT BEFORE 15 - 01 - 2015 NO INTIMATION OR ANY TYPE OF COMMUNICATION IN RESPECT OF ADDITION / DISALLOWANCE OF ANY KIND IN RESPECT OF RETURNS FILED FOR THE ASSESSMENT YEARS 2003 - 04 TO 2008 - 09 WAS RECEIVED BY YOU EI THER FROM YOUR OFFICE OR FROM CPC OFFICE BANGALORE, IT IS PERTINENT TO REFER TO PARA 34 OF THE HON BLE DELHI HIGH COURT JUDGMENT IN COURT ON ITS OWN MOTION V/S U OI IN W.P (C) 2659/2012 DATED 14 - 03 - 2013 WHICH FORMS THE OPERATIONAL PART OF THE C.B.D.T INSTRU CTION NO. 04/2013 DATED 05 - 07 - 2013 OF COURSE, WHILE DECIDING APPLICATION UNDER SECTION 154 OR 245 OR OTHERWISE, IF THE ASSESSING OFFICER COMES TO THE CONCLUSION AND RECORDS A FINDING THAT TDS OR TAX CREDIT HAD BEEN FRAUDULENTLY CLAIMED HE WILL BE ENTITL ED TO TAKE ACTION AS PER LAW AND DENY THE FRAUDULENT CLAIM OF TDS ETC. THE ASSESSING OFFICER, THEREFORE, HAS TO MAKE A DISTINCTION BETWEEN FRAUDULENT CLAIMS AND CLAIMS WHICH HAVE BEEN REJECTED ON GROUND OF TECHNICALITIES, BUT THERE IS NO COMMUNICATION TO T HE ASSESSEE OF THE ORDER/INTIMATION UNDER SECTION 143(1) IN YOUR CASE FOR THE A.Y 2008 - 09, ITR WAS FILED ON 21 - 09 - 2008 VIDE E - FILING ACK NO. 37622440210908. AS PER PAN B SCHEDULE TTI THE ASSESSEE COMPANY HAS DECLARED AS UNDER (1) TAX PAYABLE ON DEEMED TOTAL INCOME U/S 115JB = RS. 11,93,80,341 (2C ) TAX PAYABLE AT NORMAL RATES = RS. 2,23,505 4 ITA NO .4736/DEL/2016 HOWEVER IN THE COL UMN (3) WHERE GROSS TAX PAYABLE (ENTER H IGHER OF 2C OR I) THE ASSESSEE COMPANY FRAUDULENTLY ENTERED THE VALUE AT COLUMN (2C) VIZ. RS. 2,23,505 EV EN THOUGH IT WAS MUCH LOWER THAN THE VALUE AT COLUMN (1) VIZ. RS. 11,93,80,341. THE SCREEN SHOT IS AS UNDER - HENCE, IT IS APPARENT THAT TAX CREDIT HAD BEEN FRAUDULENTLY CLAIMED BY THE ASSESSEE COMPANY AND THE CLAIM OF THE ASSESSEE COMPANY IS SQUARELY H IT BY THE EXCEPTION ENUMERATED BY TIRE HON BLE DELHI HIGH COURT JUDGMENT IN COURT ON ITS OWN MOTION V/S UOL IN W.P (C) 2659/2012 DATED 14 - 03 - 2013 WHICH FORMS THE OPERATIONAL PART OF THE C.B.D.T INSTRUCTION NO. 04/2013 DATED 05 - 07 - 2013. THEREFORE, THE REC TIFICATION APPLICATION DATED 04 - 07 - 2015 (RECEIVED IN ASK COUNTER ON 09 - 07 - 2015) IS HEREBY REJECTED. 5 ITA NO .4736/DEL/2016 2.1 ON FURTHER APPEAL, BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED THAT THERE WAS NO INCORRECT CLAIM OR ARITHMETIC ERROR IN RESPECT OF THE TAX LIABILIT Y. THE ASSESSEE SUBMITTED THAT A DJUSTMENT MADE BY THE DEPARTMENT AND THE LIABILITY CREATED BY THE DEPARTMENT SUO MOT U AT THEIR OWN, WITHOUT INTIMATING THE ASSESSEE COMPANY AND THEREFORE SAME IS VOID UNDER THE LAW. THE LD. CIT(A) VERIFIED FROM THE RECORD OF THE ASSESSING OFFICER AS WELL AS FROM THE COMMUNICATION WITH THE CPC BANGALORE THAT NO ORDER UN DER SECTION 143 (1) OF THE A CT WAS SERVED UPON THE ASSESSEE WITHIN THE STIPULATED PERIOD. THE DIRECTOR OF THE ASSESSEE COMPANY ALSO FILED AFFIDAVIT AFFIRMING TH E RETURN OF INCOME AND COPY OF THE COMPUTATION OF THE INCOME FILED ALONG WITH RETURN OF INCOME . THE DIRECTOR A FFIRMED IN THE AFFIDAVIT THAT ASSESSEE COMPANY HAS NEITHER MADE ANY FRAUDULENTLY CLAIM OF TAX CREDIT NOR FRAUDULENTLY TDS HAS BEEN CLAIMED. ACCORD ING TO THE ASSESSEE , THE RETURN OF INCOME FILE D UNDER SECTION 139 (1) OF THE A CT WAS OF NIL TAX AND NO INCORRECT CLAIM WAS SHOWN. THE LD. CIT(A) AFTER CONSIDERING THE COMMENT OF THE ASSESSING OFFICER AS WELL AS SUBMISSION OF THE ASSESSEE ALLOWED THE APPEAL OF THE ASSESSEE RELYING ON THE PARA 33 OF THE JUDGMENT OF THE H ON BLE DELHI HIGH COURT BY ITS OWN M OTION VERSUS U NION OF INDIA (SUPRA) OBSERVING AS UNDER: I HAVE EXAMINED THE MATERIAL FURNISHED BY THE APPELLANT ALONG WITH AFFIDAVIT AND REPORT FURNISHED BY THE AO ON THE AFFIDAVIT OF THE APPELLANT. I HAVE ALSO EXAMINED THE LETTER RECEIVED FROM DIRECTOR, CPC BANGALORE VIDE LETTER DATED 13.04.2016. ON THE BASIS OF THE ABOVE MATERIAL IT IS ESTABLISHED THAT INTIMATION U/S 143(1) FOR AY 2008 - 09 WAS NOT SERVED T O THE APPELLANT BEFORE 31.03.2010. THE DIRECTOR, CPC HAS MENTIONED THAT NOTICE U/S 245 WAS SENT ON 04.03.2014 WHILE PROCESSING THE RETURN ON INCOME FOR AY 2014 - 15 6 ITA NO .4736/DEL/2016 AND AGAIN NOTICE U/S 245 WAS SENT ON 24.11.2014 WHILE PROCESSING THE RETURN OF INCOME FOR AY 2014 - 15 NOWHERE IN THIS LETTER, THE DIRECTOR, CPC BANGALORE, HAS COMMENTED ABOUT THE SERVICE OF INTIMATION U/S 143(1) ON THE APPELLANT FOR AY 2008 - 09 BEFORE 31.03.2010. THE ASSESSING OFFICER ALSO DOES NOT HAVE ANY PROOF OF SERVICE OF INTIMATION PREPARED U/ S 143(1). IT IS ALSO SEEN THAT THERE IS NO CASE RECORDS WITH THE AO WITH REFERENCE TO ASSESSMENT YEAR 2008 - 09 AND SERVICE OF THE INTIMATION, THEREFORE, IT IS ESTABLISHED THAT INTIMATION U/S 143(1) WAS SERVED UPON THE APPELLANT ONLY AFTER 09.01.2015 AS THE INTIMATION U/S 143(1) WAS NEVER COMMUNICATED TO THE APPELLANT COMPANY AND IT IS ONLY THE APPELLANT WHO SOUGHT THE COPY OF INTIMATION AFTER 09.01.2015 ON RECEIPT OF THE NOTICE U/S 245, THEREFORE, THE ADJUSTMENT MADE BY THE DEPARTMENT U/S 143(1) BECOMES NON - EST, AND LEGALLY NOT SUSTAINABLE IN VIEW OF DELHI HIGH COURT JUDGMENT. IN THIS REGARD THE APPELLANT HAS PLACED RELIANCE ON THE JUDGMENT OF HON BLE DELHI HIGH COURT IN WITH REFERENCE TO WRIT PETITION (CIVIL) 2659/2012 WHEREIN THE COURT VIDE PARA 33 OF THE O RDER HELD AS UNDER: - 33. THE SECOND GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO THE UN - COMMUNICATED INTIMATIONS UNDER SECTION 143(1) WHICH REMAINED ON PAPER/FILE OR THE COMPUTER OF THE ASSESSING OFFICER. THIS IS SERIOUS CHALLENGE AND A MATTER OF GRAVE CONCERN. THE LAW REQUIRED INTIMA TION UNDER SECTION 143(1) SHOULD BE COMMUNICATED TO THE ASSESSEE, IF THERE IS AN ADJUSTMENT MADE IN THE RETURN RESULTING EITHER IN DEMAND OR REDUCTION IN REFUND THE UN - COMMUNICATED ORDERS/INTIMATIONS CANNOT BE ENFORCED AND ARE NOT VALID RESPONDENTS IN THE COUNTER AFFIDAVIT HAVE NOT DEALT WITH THIS PROBLEM ON THE ASSUMPTION THAT THE ASSESSING OFFICER WHO HAD MANUALLY PROCESSED THE RETURNS AND PASSED THE ORDER/INTIMATIONS UNDER SECTION 143(1) WOULD HAVE NECESSARILY FOLLOWED THE STATUTE AND COMMUNICATED THE SA ID ORDERS/INTIMATIONS. IN CASE THE SAID ORDERS/INTIMATIONS UNDER SECTION 143(1) WERE COMMUNICATED OR DISPATCHED TO THE ASSESSEES, THE DIRECTIONS GIVEN BY US BELOW WOULD NOT BE A CAUSE FOR ANY GRIEVANCE AND WILL NOT BE A MATTER OF CONCERN FOR THE REVENUE WE ALSO ACCEPT THE CONTENTION OF THE REVENUE THAT WHERE AN ORDER UNDER SECTION 143(1) WAS SENT AND COMMUNICATED TO THE ASSESSEE BUT COULD NOT BE SERVED DUE TO NON - AVAILABILITY/CHANGE OF ADDRESS OR OTHER VALID REASONS, SHOULD NOT BE TREATED AT PAR WITH CASES WHERE THERE IS NO COMMUNICATION OR NO ATTEMPT IS MADE TO SERVE THE ORDER WHATSOEVER. BUT WHEN THERE IS FAILURE TO DISPATCH OR SEND COMMUNICATION/INTIMATIONS TO THE ASSESSEE CONSEQUENCES MUST FOLLOW. SUCH INTIMATION/ORDER PRIOR TO 31ST MARCH, 2010, WILL BE TREATED AS NON - EST OR INVALID FOR WANT OF COMMUNICATIONS/SERVICE WITHIN A REASONABLE TIME. THIS EXERCISE, IT IS DESIRABLE SHOULD BE UNDERTAKEN EXPEDITIOUSLY BY 7 ITA NO .4736/DEL/2016 THE ASSESSING OFFICERS. CBDT WILL ISSUE INSTRUCTIONS TO THE ASSESSING OFFICERS. 34. THE ONUS T O SHOW THAT THE ORDER WAS COMMUNICATED AND WAS SERVED ON THE ASSESSEE IS ON THE REVENUE AND NOT UPON THE ASSESSEE. WE MAY NOTE IN CASE AN ORDER UNDER SECTION 143(1) IS NOT COMMUNICATED OR SERVED ON THE ASSESSEE, THE RETURN AS DECLARED/FILED IS TREATED AS D EEMED INTIMATION AND AN ORDER UNDER SECTION 143(1)' THE FACTS OF THE ABOVE CITED JUDGMENTS ARE IDENTICAL WITH THE FACTS OF THE APPELLANT S CASE, THEREFORE, RATIO OF THE SAID JUDGMENT IS SQUARELY APPLICABLE TO THE APPELLANT S CASE. SINCE, IN THIS CASE INTIMATION U/S 143(1) FOR THE ADJUSTMENT MADE WAS NOT SERVED UPON THE APPELLANT ON OR BEFORE 31.03.2010 AND THE DEPARTMENT HAS FAILED TO GIVE ANY PRO OF OF SERVICE OF SUCH INTIMATION TO THE APPELLANT, THEREFORE, THE INTIMATION U/S 143(1) ISSUED IS TREATED AS NON - EST OR INVALID FOR WANT OF COMMUNICATION/SERVICE. ACCORDINGLY, THE DEMAND CREATED THROUGH SUCH INTIMATION OF RS.1,21,71,279/ - IS DELETED. 2.2 AGGRIEVED WITH THE ABOVE FINDING OF THE LD. CIT(A), THE R EVENUE IS IN APPEAL BEFORE THE T RIBUNAL , RAISING THE GROUNDS AS REPRODUCED ABOVE. 3. AT THE OUTSET, WE MAY LIKE TO MENTION THAT THE ASSESSEE WAS DULY NOTIFIED BY THE REGISTERED POST FOR THE HEARING D ATED 06/06/ 2019. AS PER THE RECORD , NOTICE HAS NOT RETURNED BACK AND THUS WE CAN SAFELY PRESUME THAT THE NOTICE WAS DULY SERVED UPON THE ASSESSEE. DESPITE NOTIFYING , NON - ATTENDED ON BEHALF THE ASSESSEE , NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED, ACCORD INGLY WE WERE OF THE OPINION THAT ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APPEAL AND THUS WE PROCEEDED TO HEAR THE APPEAL EX - PARTE , QUA THE ASSESSEE. 4. WE HAVE HEARD THE SUBMISSION OF THE LD. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN THE CASE, THE LD. CIT(A) HAS RELIED ON THE FINDING OF THE H ON BLE DELHI HIGH COURT BY ITS O WN M OTION VS. UOI (SUPRA) WHEREIN IT IS HELD THAT IF THE FAILURE TO 8 ITA NO .4736/DEL/2016 DISPAT CH OR SEND COMMUNICATION/INTIMATION TO THE ASSESSEE, SUCH INTIMATION/ORDER PRIOR TO 31 ST MARCH , 2010 WOULD BE TREATED AS AN NON - EST OR INVALID FOR WANT OF COMMUNICATION/SERVICE WITHIN A REASONABLE TIME. WHEREAS ACCORDING TO THE ASSESSING OFFICER, THE CASE OF THE ASSESSEE IS COVERED BY THE EXCEPTION PROVIDED IN PARA 34 OF THE JUDGMENT OF THE H ON BLE DELHI HIGH COURT BY ITS OWN M OTION VS. UOI (SUPRA). IN VIEW OF THE CONTROVERSY, IT IS RELEVANT TO REPRODUCE PARA 33 AND 34 OF THE JUDGMENT OF THE HON BLE DELHI H IGH COURT AS UNDER: 33. THE SECOND GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO THE UN - COMMUNICATED INTIMATIONS UNDER SECTION 143(1) WHICH REMAINED ON PAPER/FILE OR THE COMPUTER OF THE ASSESSING OFFICER. THIS IS SERIOUS CHALLENGE AND A MATTER OF GRAVE CON CERN. THE LAW REQUIRES INTIMATION UNDER SECTION 143(1) SHOULD BE COMMUNICATED TO THE ASSESSEE, IF THERE IS AN ADJUSTMENT MADE IN THE RETURN RESULTING EITHER IN DEMAND OR REDUCTION IN REFUND. THE UN - COMMUNICATED ORDERS/INTIMATIONS CANNOT BE ENFORCED AND ARE NOT VALID. RESPONDENTS IN THE COUNTER AFFIDAVIT HAVE NOT DEALT WITH THIS PROBLEM ON THE ASSUMPTION THAT THE ASSESSING OFFICER WHO HAD MANUALLY PROCESSED THE RETURNS AND PASSED THE ORDER/INTIMATIONS UNDER SECTION 143(1) WOULD HAVE NECESSARILY FOLLOWED THE STATUTE AND COMMUNICATED THE SAID ORDERS/INTIMATIONS. IN CASE THE SAID ORDERS/INTIMATIONS UNDER SECTION 143(1) WERE COMMUNICATED OR DISPATCHED TO THE ASSESSEES, THE DIRECTIONS GIVEN BY US BELOW WOULD NOT BE A CAUSE FOR ANY GRIEVANCE AND WILL NOT BE A MATTE R OF CONCERN FOR THE REVENUE. WE ALSO ACCEPT THE CONTENTION OF THE REVENUE THAT WHERE AN ORDER UNDER SECTION 143(1) WAS SENT AND COMMUNICATED TO THE ASSESSEE BUT COULD NOT BE SERVED DUE TO NON - AVAILABILITY/CHANGE OF ADDRESS OR OTHER VALID REASONS, SHOULD NOT BE TREATED AT PAR WITH CASES WHERE THERE IS NO COMMUNICATION OR NO ATTEMPT IS MADE TO SERVE THE ORDER WHATSOEVER. BUT WHEN THERE IS FAILURE TO DISPATCH OR SEND COMMUNICATION/INTIMATION TO THE ASSESSEE CONSEQUENCES MUST FOLLOW. SUCH INTIMATION/ORDER PRI OR TO 31 ST MARCH, 2010, WILL BE TREATED AS NON - EST OR INVALID FOR WANT OF COMMUNICATION/SERVICE WITHIN A REASONABLE TIME. THIS EXERCISE, IT IS DESIRABLE SHOULD BE UNDERTAKEN EXPEDITIOUSLY BY THE ASSESSING OFFICERS. CBDT WILL ISSUE INSTRUCTIONS TO THE ASSES SING OFFICERS. 34. THE ONUS TO SHOW THAT THE ORDER WAS COMMUNICATED AND WAS SERVED ON THE ASSESSEE IS ON THE REVENUE AND NOT UPON THE 9 ITA NO .4736/DEL/2016 ASSESSEE. WE MAY NOTE IN CASE AN ORDER UNDER SECTION 143(1) IS NOT COMMUNICATED OR SERVED ON THE ASSESSEE, THE RETURN AS DECLARED/FILED IS TREATED AS DEEMED INTIMATION AND AN ORDER UNDER SECTION 143(1). THEREFORE, IF AN ASSESSEE DOES NOT RECEIVE OR IS NOT COMMUNICATED AN ORDER UNDER SECTION 143(1), HE WILL NEVER KNOW THAT SOME ADJUSTMENTS ON ACCOUNT OF REJECTION OF TDS OR TA X PAID HAS BEEN MADE. WHILE DECIDING APPLICATIONS UNDER SECTION 154, OR PASSING AN ORDER UNDER SECTION 245, THE ASSESSING OFFICERS ARE REQUIRED TO KNOW AND FOLLOW THE SAID PRINCIPLE. OF COURSE, WHILE DECIDING APPLICATION UNDER SECTION 154 OR 245 OR OTHERWI SE, IF THE ASSESSING OFFICER COMES TO THE CONCLUSION AND RECORDS A FINDING THAT TDS OR TAX CREDIT HAD BEEN FRAUDULENTLY CLAIMED HE WILL BE ENTITLED TO TAKE ACTION AS PER LAW AND DENY THE FRAUDULENT CLAIM OF TDS ETC. THE ASSESSING OFFICER, THEREFORE, HAS TO MAKE A DISTINCTION BETWEEN FRAUDULENT CLAIMS AND CLAIMS WHICH HAVE BEEN REJECTED ON GROUND OF TECHNICALITIES BUT THERE IS NO COMMUNICATION TO THE ASSESSEE OF THE ORDER/INTIMATION UNDER SECTION 143(1). IN THE LATER CASES, THE ASSESSING OFFICER CANNOT TURN AROUND AND ENFORCE THE DEMAND CREATED BY UN - COMMUNICATED ORDER/INTIMATION UNDER SECTION 143(1). THIS IS THE FIFTH MANDAMUS WHICH WE HAVE ISSUED. 5. THE ABOVE WRIT PETITION WAS ADJUDICATED BY THE HON BLE DELHI HIGH COURT WITH REFERENCE TO THE VARIOUS DISCREPANCIES IN CREDIT OF THE TAX DEDUCTED AT SOURCE WHILE PROCESSING THE RETURN OF INCOME BY THE CPC, BANGALORE AND ADJUSTMENT OF REFUND AGAINST THE OUTSTANDING DEMAND . ON PERUSAL OF THE PARA 34 OF THE ABOV E JUDGMENT , IT IS CLEAR THAT THE HON BLE HIGH COURT HAS PROVIDED AN EXC EPTION TO THE FINDING GIVEN IN P ARA 33 THAT IF WHILE DECIDING APPLICATION UNDER SECTION 154 OR 245 OR OTHERWISE IF THE ASSESSING OFFICER COMES TO THE CONCLUSION AND RECORDS THE FINDING THAT THE TDS OR TAX CREDIT HAD BEEN FRAUDULENTLY CLAIMED, THEN THE ASSESSING OFFICER WOULD BE ENTITLED TO TAKE ACTION AS PER LAW AND DENY THE FRAUDULENT CLAIM OF TDS ETC. THE WORD ETC . IN THE JUDGMENT OF THE HON BLE HIGH COURT HAS COVERED THE SITUATION O F THE SIMILAR KIND. THE HON BLE HIGH COURT FURTHER DIRECTED THAT THE ASSESSING OFFICER HAS TO DECIDE WHETHER THE CLAIM IS FRAUDULENT OR MERELY INVOLVING TECHNICALITIES. 10 ITA NO .4736/DEL/2016 6. IN VIEW OF THE ABOVE EXCEPTION, THE LD. ASSESSING OFFICER POINTED OUT THE ERROR IN THE COMPUTATION OF TAX BY THE ASSESSEE. IN THE CASE OF THE ASSESSEE TAX AS PE R THE PROVISIONS OF SECTION 115 JB WAS COMPUTED AT RS. 1,19,38,034/ - AND TAX AS PER NORMAL PROVISIONS WAS COMPUTED AT RS.2,23,505/ - . IN THE R OW - 3 OF THE P ART B - III OF THE RETURN O F INCOME, THE ASSESSEE WAS REQUIRED TO ENTER THE VALUE HI GHER OUT OF TWO AMOUNT, I.E., RS.1,19,38, 034/ - AND RS. 2,23,505/ - , WHICH IS APPARENTLY RS.1 ,19,38,034/ - , BUT THE ASSESSEE ENTERED THE FIGURE OF RS.2,23,505/ - AND WORKED OUT ITS NET TAX LIABILITY AFTER PREPAID TAXES AT NIL. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THAT THERE WAS NO INCORRECT CLAIM OR ARITHMETICAL ERROR IN RESPECT OF THE TAX LIABILITY AND DIRECTOR OF THE COMPANY SUBMITTED AN AFFIDAVIT THAT NO FRAUDULENT CLAIM HAS BEEN MADE. THE LD. C IT(A) HELD THAT THE ASSESSING OFFICER FAILED TO FILE ANY PROOF REGARDING THE FRAUDULENT CLAIM OF TAX CREDIT AND ACCORDINGLY , HE ALLOWED THE APPEAL OF THE ASSESSEE. 7. IN OUR OPINION, ON PERUSAL OF THE PART B - III OF THE RETURN OF INCOME, REPRODUCED BY THE ASSESSING OFFICER IN THE RECTIFICATION ORDER ITSELF MAKE IT CLEAR THAT A TOTALLY WRONG CLAIM HAS BEEN MADE BY THE ASSESSEE. EVEN A LAYMAN CAN UNDERSTAND THAT OUT OF THE TWO AMOUNTS OF RS.1,19,38, 034/ - AND RS. 2,23, 505/ - WHICH IS HIGHER AMOUNT. IN THE CASE, THE ASSESSEE IS A PRIVATE LIMITED COMPANY, HAVING A TEAM OF EXPERT FOR FILING RETURN OF INCOME AND THUS, SUCH A CLAIM CANNOT BE MADE IN NORMAL CIRCUMSTANCES. WE ARE OF VIEW THAT WHETHER THE CLAIM HAS BEEN MADE FRAUDULENTLY OR NOT, BUT DEFINITELY IT IS NOT ON THE GROUND OF TECHNICALITIES AND THE BOGUS CLAIM OF THE ASSESSEE IS COVERED IN THE ETC CIRCUMSTANCES MENTIONED IN THE JUDGMENT OF THE HON BLE DELHI HIGH COURT 11 ITA NO .4736/DEL/2016 (SUPRA). IT IS NOT EXPECTED THAT HON BLE HIGH COURT WILL MENTION ALL KIND OF POSSIBLE SITUATI ONS WHICH COULD EMERGE IN MISMATCH OF INCOME OR TAX PAYABLE. IN THE INSTANT CASE, DEFINITELY THE ASSESSEE HAS AVOIDED MAKING HUGE PAYMENT OF TAX OF MORE THAN RUPEES ONE CRORE, BY WAY OF MAKING WRONG ENTRIES OR MANIPULATING THE ENTRIES. WE ARE OF THE CONSID ERED OPINION THAT CASE OF THE ASSESSEE IS COVERED BY THE EXCEPTION PROVIDED IN THE JUDGMENT OF THE HON BLE D ELHI HIGH COURT BY ITS OWN MOTION VS. UOI (SUPRA), AND ACCORDINGLY , WE SET ASIDE THE FINDING OF THE LD. CIT(A) AND UPHOLD THE FINDING OF THE ASSESSI NG OFFICER. THE GROUND S OF THE APPEAL OF THE R EVENUE ARE ACCORDINGLY ALLOWED. 8. IN A RESULT, THE APPEAL OF THE R EVENUE IS ALLOWED. ORDER IS PRONOUN CED IN THE OPEN COURT ON 24 TH JUNE 2019. SD/ - SD/ - [ AMIT SHUKLA ] [O.P. KANT] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24 TH JUNE , 2019. RK/ - [D.T.D.S] COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI