Vilaskumar Thanmal Palresha, Pune V. Deputy Commissioner of Income-Tax, Circle -7, , Pune

ITA 678/PUN/2022

AI Insights

Mr. Vilaskumar Thanmal Palresha appealed against the order of the National Faceless Appeal Centre (NFAC), which had rejected his appeal as not maintainable on the grounds that there was no deviation in the total income as compared to the returned income in the Section 143(1) intimation. The assessee argued that the CIT(A) erred in not adjudicating on the merits of the case, particularly concerning the exempt income from the sale of rural agricultural land and the incorrect tax demand raised under Section 143(1). The Tribunal, however, upheld the NFAC's decision, emphasizing that the appeal was not maintainable as no adjustments were made to the returned income, and thus, the CIT(A) was not in error for rejecting the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137368 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2023
• Appeal Filed By: Assessee
• Order Result: DismissedDismissed
• Bench Allotted: B
• Next Hearing Date: 08-02-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 11-09-2022
• Other Referred Cases: National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC), All Cargo Global Logistics Ltd. vs. DCIT 23 taxmann.com 103 (Mum.) (SB)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Earning of tax free income; TDS; FORM 26AS
• Section: 143(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B” : PUNE BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA.No.678/PUN./2022 Assessment Year 2019-2020 Mr. Vilaskumar Thanmal Palresha, VIP House, Plot No.3,4 & 5, Survey No.34A/6, Behind Shakti Sports, Wadgaonsheri, Pune. Maharashtra. PIN 411 014 PAN AAUPP2874P vs. The Deputy Commissioner of Income Tax, Circle-7, Aaykar Bhawan, Bodhi Towers, Salisbury Park, Pune, Maharashtra. PIN 411 009. (Appellant) (Respondent) For Assessee : Shri Pratik Sandhbhor For Revenue : Shri M.G. Jasnani Date of Hearing : 09.02.2023 Date of Pronouncement : 17.02.2023 ORDER PER SATBEER SINGH GODARA, J.M. This assessee’s appeal for assessment year 2019-20, arise against the National Faceless Appeal Centre [in short “NFAC”] Delhi’s DIN & Order No. ITBA/NFAC/S/250/2022- 23/1043872341(1) dated 15.07.2022, involving proceedings under Section 143(1) of the Income Tax Act, 1961 (in short “the Act”). Heard both the parties. Case file perused. 2. It transpires during the course of hearing that the NFAC herein has passed its lower appellate order rejecting the 2 ITA.No.678/PUN./2022 Mr. Vilaskumar Thanmal Palresha, Pune assessee’s appeal as not maintainable for want of “locus” on the ground that the Assessing Officer/CPC’s sec.143(1) processing had not made any adjustment to the returned income. It is in this factual backdrop that the assessee has pleaded the following substantive grounds in the instant appeal : “Based on the facts and circumstances of the case, VILASKUMAR THANMAL PALRESHA (hereinafter referred to as ‘the Appellant’) respectfully craves leave to prefer an appeal under section 253(l)(a) of the Income-tax Act, 1961 (hereinafter referred to as ‘Act’), against the order dated 15 July 2022 (received on 15 July 2022) passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [CIT(A), NFAC] under section 250 of the Act, on the following grounds, which are independent of and without prejudice to each other : On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has: 1. Erred in holding that the impugned appeal is not maintainable before him in view of the fact that in the intimation under section 143(1) there is no deviation to the total income as compared to returned income. 3 ITA.No.678/PUN./2022 Mr. Vilaskumar Thanmal Palresha, Pune 1.1 The learned CIT(A), NFAC has erred on facts and in circumstances of the case and in law in deciding the appeal to be not maintainable, disregarding the provisions of section 246A(l)(a), wherein the Appellant is entitled to file an appeal against the intimation under section 143(1) of the Act where the Appellant denies its liability to be assessed under the Act and therefore is aggrieved by the amount of tax determined. 1.2. Thereby, the learned CIT(A), NFAC has erred consequently, in confirming the demand raised u/s 143(1) on the exempt income of the Appellant. 1.3. The learned CIT(A), NFAC erred in not exercising the wide powers to adjudicate the appeal on merits for arriving at the correct total taxable income of the Appellant, 1.4. Failed to appreciate that where the Appellant had made evident error in the return of income by offering the income which is otherwise not includible in the total income being long term capital gain on sale of rural agriculture land, he could have set right the total income by deciding the case on merits rather holding that the appeal is not maintainable. 4 ITA.No.678/PUN./2022 Mr. Vilaskumar Thanmal Palresha, Pune 1.5. Failed to appreciate that the law does not lay down such a condition that the appeal against order under section 143(1) of the Act would be maintainable only if there is deviation in income as compared to returned income. 1.6. Failed to appreciate that the as per the decision of jurisdictional high court the tax cannot be levied or collected except by authority of law. II. Long Term capital Gain on sale of rural agriculture land is exempt from tax 2. On the facts and circumstances of the case the total income of the Appellant for AY 2019-20 has been inadvertently offered at Rs.1,76,28,500, as against the correct total income of the Appellant being Rs.27,63,475, the differential amount or Rs.1,48,65,375 being exempt income from sale of rural agricultural land. 3. On the facts and circumstances of the case and in law the gain on transfer of rural agricultural land of Rs.1,48,65,375 is not exigible to tax under the provisions of the Act. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing of the appeal, so as to 5 ITA.No.678/PUN./2022 Mr. Vilaskumar Thanmal Palresha, Pune enable the Honourable Income-tax Appellate Tribunal to decide this appeal according to law.” 3. Learned counsel further invited our attention to the assessee’s additional ground alleging mis-match of TDS credit in light of Form 26AS as well. 4. We now advert to the assessee’s vehement contentions during the course of hearing. Mr. Sandhbhor vehemently argued in light of the assessee’s main grounds that the CIT(A) has erred in law and on facts in rejecting his first appeal as not maintainable. He also quoted a catena of case law compilation running into 95 pages as well. The assessee next pleaded that he indeed deserves the CIT(A)'s adjudication on merits on the various issues in the lower appeal. Coming to the assessee’s additional ground (supra), learned counsel submitted that the same could very well be raised in light of National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC). 5. The Revenue has placed strong reliance on the NFAC’s order rejecting the assessee’s appeal in limine. 6. We have given our thoughtful consideration to the assessee’s vehement contentions and find no merit therein. We make it clear that the assessee could not even throw sufficient light on any adjustment made in the returned income during 6 ITA.No.678/PUN./2022 Mr. Vilaskumar Thanmal Palresha, Pune sec.143(1) processing which could make him eligible to invoke the lower appellate jurisdiction u/s.246A of the Act. The same outcome also flows for the above additional ground (supra) wherein there are no details forthcoming from the case file at all which forms a condition precedent as held in this tribunal’s Special Bench’s decision in All Cargo Global Logistics Ltd. vs. DCIT 23 taxmann.com 103 (Mum.) (SB) decided after considering NTPC (supra). We, therefore, uphold the NFAC’s findings rejecting the assessee’s instant lower appeal in limine. We further make it clear that our instant adjudication shall not come in assessee’s way of availing all other alternative remedies, if any, available in law. 7. This assessee’s appeal is dismissed in above terms. Order pronounced in the open Court on 17.02.2023. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 17 th February, 2023 VBP/- Copy to 1. The appellant 2. The respondent 3. The Ld. CIT(A) concerned. 4. The CIT concerned 5. D.R. ITAT, Pune “B” Bench, Pune 6. Guard File. //By Order// Assistant Registrar, ITAT, Pune Benches, Pune.