LADE MADWESH, Kadapa V. Income Tax Officer, Ward-(2), Kadapa

ITA 546/Hyd/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2235 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 15-05-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 07-11-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revised return; TDS
• Section: 154; 143(1)

Judgement Text

ITA No 546 of 2023 Lade Madwesh Page 1 of 9 आयकर अपीलȣय अͬधकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘B ‘ Bench, Hyderabad Before Shri Laliet Kumar, Judicial Member And Shri Madhusudan Sawdia, Accountant Member आ.अपी.सं /ITA No.546/Hyd/2023 (िनधाŊरण वषŊ/Assessment Year: 2017-18 Lade Madwesh KADAPA PAN:AABHL5201M Vs. Income Tax Officer Ward-2 KADAPA (Appellant) (Respondent) िनधाŊįरती Ȫारा/Assessee by: Shri Kumar Pal Tated, CA राज̾ व Ȫारा/Revenue by: : Shri Rahul Singhania, DR सुनवाई की तारीख/Date of hearing: 16/05/2024 घोषणा की तारीख/Pronouncement: 22/05/2024 आदेश/ORDER Per Laliet Kumar, J.M This appeal filed by Lade Madwesh (“ the assessee”) is directed against the order dated 20/09/2023 of the Learned commissioner of Income Tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi (“Ld. CIT(A)”), relating to A.Y.2017-18. 2. The grounds raised by the assessee reads as under : ITA No 546 of 2023 Lade Madwesh Page 2 of 9 3. The assessee also raised the following additional grounds before us: ITA No 546 of 2023 Lade Madwesh Page 3 of 9 4. Learned AR submitted that additional grounds so filed are admissible in view of judgment rendered by the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). The prayer for admission of additional grounds noted above, which are not in memorandum of appeal, are being admitted for adjudication in terms of Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 owing to the fact that objections raised in additional grounds are legal in nature for which relevant facts are stated to be emanating from the existing records. 5. Facts of the case, in brief, are that the assessee filed its return of income for the AY. 2017-18 on 05/02/2018, declaring total income of Rs.6,79,760/-. The Centralized Processing Centre, Bengaluru (‘CPC’) issued intimation u/s. 143(1) of the Income Tax Act, 1961 (for short “the Act”) on 19/03/2019 making an addition of Rs.1,04,12,500 on account of long-term capital gain. The assessee filed rectification against the addition before CPC, but did not succeed in getting any relief from the CPC. 6. Aggrieved, assessee preferred appeal before the Ld.CIT(A). Ld.CIT(A) with the following observation in para no.7 & 8 of his order, sustained the addition made by CPC and dismissed the appeal of the assessee. ITA No 546 of 2023 Lade Madwesh Page 4 of 9 7. Feeling aggrieved with the order of the Ld. CIT(A), the assessee is now in appeal before the Tribunal. Consolidating all their grounds, the learned Counsel for the assessee submitted that the Ld.CIT(A)/CPC erred in not rectifying the mistake which is covered u/s 154 of the Act. The learned AR further submitted that the deductions/exemptions otherwise allowable to the assessee under relevant provisions of the Act should not had been denied by the revenue authorities on simple technical mistakes on the part of the assessee. 8. The learned DR, on the other hand, heavily relied on the order of the learned revenue authorities. ITA No 546 of 2023 Lade Madwesh Page 5 of 9 9. We have heard the rival arguments made by both the sides and perused the orders of the learned revenue authorities. The main issue before us to decide whether the intimation issued by the CPC is subject to rectification u/s 154 of the Act or not. To decide the issue, it is relevant to reproduce Section 154(1) of the Act, which is to the following effect: “Rectification of mistake. 154. (1) With a view to rectifying any mistake apparent from the record an income-tax authority referred to in section 116 may,— (a) amend any order passed by it under the provisions of this Act ; (b) amend any intimation or deemed intimation under sub-section (1) of section 143; (c) amend any intimation under sub-section (1) of section 200A; (d) amend any intimation under sub-section (1) of section 206CB.” 10. From perusal of above it is absolutely clear that any mistake which is apparent from record can only be rectified u/s 154 of the Act. Further Hon'ble Supreme Court in the case of T. S. Balaram, Income Tax vs M/S. Volkart Brothers, Bombay on 5 August, 1971, (1971) AIR 2204, has held that to rectify a mistake, the mistake 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 conceivably be two opinions. The relevant portion of the decision of the Hon'ble Supreme Court read as under: “It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under S. 154 of the Income-tax Act, 1961. A mistake apparent on 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 conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in ITA No 546 of 2023 Lade Madwesh Page 6 of 9 our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and ors. v. Millikarjun Bhavanappa Tirumale(1) this Court while Spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record-see Sidhamappa v. Commissioner- of Income-tax, Bombay(2). The power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In this case it is not necessary for us to spell out the distinction between the expressions 66 error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. For the reasons mentioned above we dismiss this appeal with costs.” 11. Respectfully following the decision of the Hon'ble Supreme Court and in view of the provisions of section 154 of the Act, we are of the considered opinion that in the case of the assessee the mistake is not apparent from the record. Hence, we dismiss the appeal of the assessee. Grounds of appeal are answered accordingly. 12. The assessee has relied upon the following decisions in support of the fact that the order passed by the Assessing Officer u/s 154 and upheld by the learned CIT (A) are not in accordance with law: i) Dinumatiben Damjibhai Shilu vs. Income Tax Officer vide ITA No.195/RJT/2022 dated 28.022022 wherein it clearly shows that in that case there is a mismatch between the income ITA No 546 of 2023 Lade Madwesh Page 7 of 9 reflected on account of salary and return filed u/s 89(1) of the I. T. Act and in those facts, the Tribunal has held that section 154 should be invoked by the Assessing Officer. ii) Similar are the facts in the case of ACIT vs. M/s. NSL Renewable Power (P) Ltd in ITA No.725/Hyd/2022 dated 28.02.2023 wherein the Tribunal was called upon to decide whether provisions of section 154 can be invoked. In that case, the short issue was whether the TDS in the form reflected in Form 26AS is allowable to the assessee or not. In that case the Assessing Officer has refused to acknowledge the revised TDS form 26AS, therefore, the Tribunal has held that the Assessing Officer should have rectified the mistake u/s 154 of the Act. 12.1 However, the case in hand is not the case of the apparent mistake. In the present case, the assessee initially has computed the capital gain with reference to sale of mill consisting of land, machinery and sheds separately under Long-Term Capital Gain and Short-Term Capital Gain, whereas in the revised computation, the assessee has sought to revise the computation by asserting that the sale of mill was one composite sale of unit and therefore, the order u/s 143(1) is required to be rectified. The above said error, if any, cannot be corrected by the Assessing Officer while passing the order u/s 154 as held by the Hon'ble Supreme Court in the case of T. S. Balaram, Income Tax vs M/S. Volkart Brothers (Supra). Therefore, the decisions relied upon by the assessee are not applicable to the facts of the case. 12.2 The reliance of the assessee in the case of GOETZE India is also not correct as in that case, the issue before the ITA No 546 of 2023 Lade Madwesh Page 8 of 9 Hon'ble Supreme Court/High Court was whether the assessee can claim a fresh claim at the appellate stage or not without filing the revised return or not. The case in hand is not related to filing of claim by revised return of income, rather it is the case of alleged revision of incorrect/wrong facts in the computation of income at the time of filing of the return of income and after passing of the order u/s 143(1) revising the computation of income, which in our view, cannot be rectified in the order u/s 154. 13. At this stage, the ld. AR contended that sufficient time has been taken to file the present appeal before the Tribunal/CIT(A), therefore, assessee may be given liberty to approach any alternative forum or authority or Hon'ble High Court having jurisdiction. In view of the above, liberty is granted to the assessee to file any other petition/appeal before any forum or authority or Hon'ble High Court. Needless to say, the appropriate forum or authority or Hon'ble High Court may consider to condone the delay on its merits by considering the time consumed by the assessee for litigating before the Tribunal. Accordingly, the appeal of the assessee is dismissed. 14. In the result, appeal filed by the assessee is dismissed. Order pronounced in the Open Court on 22 nd May, 2024. Sd/- Sd/- (MADHUSUDAN SAWDIA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 22 nd May, 2024 Vinodan/sps ITA No 546 of 2023 Lade Madwesh Page 9 of 9 Copy to: S.No Addresses 1 Shri Lade Madwesh, S.No.436/16, Beside Madras Road, Ramanjeneyapuram, Kadapa, A.P 2 Income Tax Officer Ward 2 Cuddapah, A.P 3 Pr. CIT – Kadapa 4 DR, ITAT Hyderabad Benches 5 Guard File By Order