M/s Kalindi Place , Bhopsl V. ACIT CPC ,Banglore, Banglore

ITA 701/Ind/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7778 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-08-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 14-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V J BORICHA
• Keywords: Depreciation; Rectification of order; Opportunity of being heard; Principle of natural justice; Reasonable cause; Condonation of delay; Unabsorbed depreciation
• Section: 143(1); 73; 13; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.701/IND/2018 ASSESSMENT YEAR: 2011-12 M/S KALINDI P A LACE, MALVIYA NAGAR BHOPAL / VS. ACIT - CPC BANGLORE (APPELLANT) (REVENUE) P.A. NO. AAJFK2072K APPELLANT BY NONE (WRITTEN SUBMISSION) RE VENUE BY SHRI V. J. BORICHA , SR. DR DATE OF HEARING: 12.08.2020 DATE OF PRONOUNCEMENT: 26.08.2020 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE COMMISSIONER OF INCOME TAX APPEALS [CIT(A)]-1, B HOPAL DATED 07.06.2018 PERTAINING TO THE ASSESSMENT YEAR 2011 - 12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE APPELLANT PRAYS THAT THE INTIMATION FRAMED UNDER SECTION 143(1) OF THE ACT BE AMENDED SINCE IT IS NO T BASED ON FACTS COMPLETELY. 2. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE, IN COME TAX OFFICER (CPC) ERRED IN DISREGARDING THE BASIS CONDI TIONS PRESCRIBED FOR MAKING AN INTIMATION UNDER SECTION 1 43(1) AND THE RELEVANT INTIMATION IS NOT BASED COMPLETELY AS PER KALINDI PALACE 2 ITR FILED. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO(CPC) ALSO ERRED IN EXCEEDING THIS POWER, AUTHORI TY AND JURISDICTION U/S 143(1) OF THE INCOME TAX ACT, 1961 IN PROCESSING THE RETURN BY NOT ALLOWING EARLIER YEAR UNABSORBED DEPRECIATION OF RS.806960 TO THE DECLARE D INCOME OF RS. NIL WITHOUT SPECIFYING THE NATURE AND DETAIL OF ADDITION MADE. 4.THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, EVEN ASSUMING THAT THE SAID CLAIM OF UNABSORBED DEPRECIA TION IS DEBATABLE CLAIM, IT CANNOT BE MADE THE SUBJECT MATT ER OF PRIMA FACIE ADJUSTMENT. 5. THAT ON FACTS AND IN CIRCUMSTANCES OF THE CASE, AN OPPORTUNITY SHOULD HAVE BEEN GIVEN BEFORE DISALLOWI NG THE CLAIMS. EVEN AN OPPORTUNITY SHOULD ALSO HAVE BEEN G IVEN IN RESPECT OF OUR INTERPRETATION, WHICH MAY KINDLY BE GIVEN ON FACTS AND IN CIRCUMSTANCES OF THE CASE. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE IS DOING BUSINESS OF LODGING AND BOARDING. TH E ASSESSEE CLAIMED UNABSORBED DEPRECIATION RS.8,06,960/- OF EARLIER YEAR FROM NET PROFIT OF RS.7,10,236/- AND DEC LARED THE INCOME NIL AS SHOWN IN AUDIT REPORT. THE DEFERENC E AMOUNT OF RS.96,730/- UNABSORBED DEPRECIATION OF WAS CARRIED FORWARD FOR FUTURE YEAR. THE RETURN WAS PROCES SED UNDER SECTION 143(1) OF THE ACT AND THE INTIMATION DAT ED 16.2.2012 WAS ISSUED BY THE CPC, WHEREIN THE NET PR OFIT OF KALINDI PALACE 3 RS.7,10,236/- WAS NOT ADJUSTED AGAINST EARLIER YEAR UNABSORBED DEPRECATION OF RS.8,06,960/-. THE ASSESSEE HAS ELECTRONICALLY FILED RECTIFICATION APPLICATION UNDE R SECTION 154 OF THE ACT ON 19.06.2013 REQUESTING TO AL LOW UNABSORBED DEPRECIATION AS CLAIMED IN RETURN. 3. AGGRIEVED AGAINST THIS THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO ALSO DISMISSED THE APPEAL. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. THE CASE WAS HEARD WITH THE ASSISTANCE OF WRITTEN SUBMISSION S. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDE R: 1.1 THE APPELLANT IS DOING THE BUSINESS OF LODGING AND BOARDING .THE ASSESSEE CLAIMED UNABSORBED DEPRECIATION RS 8 06960 OF EARLIER YEAR FROM NET PROFIT OF RS 710236 AND DECLA RED THE INCOME NIL AS SHOWN IN AUDIT REPORT. THE DIFFERENCE AMOUNT OF RS 96730 UNABSORBED DEPRECIATION OF WAS CARRIED FOR WARD FOR FUTURE YEAR. 1.2 THE RETURN WAS PROCESSED UNDER SECTION 143(1) O F THE ACT AND THE INTIMATION DATED 16-2-2012 WAS ISSUED BY TH E CPC, WHEREIN THE NET PROFIT OF RS 710236 WAS NOT ADJUSTE D AGAINST EARLIER YEAR UNABSORBED DEPRECIATION OF RS806960. 1.3 AGAINST SAID INTIMATION, THE ASSESSE ELECTRONIC ALLY FILED RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT ON 19-6-13 REQUESTING TO ALLOW UNABSORBED DEPRECIATION AS CL AIMED IN RETURN. KALINDI PALACE 4 1.4 THE CPC VIDE COMMUNICATION DATED 25-6-2013 REJE CTED THE REQUEST FOR RECTIFICATION AND STATED THAT RECTIFICA TION RIGHTS ARE TRANSFERRED TO AO. 1.5 DUE TO NO-RESPONSE THE ASSESSE FILED APPEAL BEF ORE THE LEARNED CIT(A)-1 AGAINST INTIMATION ORDER UNDER SEC TION143(1) ISSUED BY THE CPC WHICH WAS SUMMARILY REJECTED BY H IM MENTIONING THAT THE APPEAL WAS FILED BEYOND THE TIM E LIMIT U/S 249(2). NO REASON WAS GIVEN NOR ANY CONDONATION APP LICATION WAS FILED .HE ALSO POINTED OUT THAT THE APPELLANT H AS WITHDRAWN APPLICATION AS REFERRED IN CPC COMMUNICATION DATED 25-6-2013. 1.6 AFTER REJECTION OF APPEAL BY CIT(A), THE ASSESS EE FILED PHYSICAL APPLICATION BEFORE THE JURISDICTIONAL AO ON 13-7-18 BUT HE DID NOT RECEIVED ANY KIND OF COMMUNICATION. THE SUMMARIZED POSITION OF THE MATTER PURSUED BY AP PELLANT ARE AS UNDER: DATE EVENT REMARK 26 - 9 - 2011 DATE OF FILING OF RETURN DECLARING INCOME TOTAL INC OME NIL PB NO 1 - 1A 16 - 2 - 2012 DAT E OF INTIMATION UNDER 143(1) FROM CPC WITH DEMAND OF RS 243210/DISALLOWING UNABSORBED DEPRECIATION RS 710236/ PB NO 2 - 3 11 - 6 - 2013 DATE OF APPLICATION FILED ONLINE WITH CPC RECTIFICA TION REFERENCE NO602466910110613 PB NO 4 19 - 6 - 2013 STATUS SHOWING RECTIFICATION REQUEST REJECTED AS PE R LOGIN DATED ON 17-4-18 PB NO 4 25 - 6 - 2013 STATUS MODIFIED SHOWING RECTIFICATION REQUEST REJE CTED ON 19-6-2013 AND AND ALSO REVEALED THAT RECTIFICATION RIGHTS TRANSFERRED TO JURISDICTIONAL ASSESSING OFFICER ON 25-6-2013 AS PER LOGIN DATED 9-11-19 PB NO 5 08 - 7 - 2015 APPEAL FILED AGAINST THE ORDER OF CPC UNDER SECTION 143(1) OF THE ACT REFERRED IN APPEAL ORDER PB NO 6-8 7 - 6 - 2018 APPEAL ORDER OF LEARNED CIT (A) - 1BHOPAL REJECTED U/S249(2) THAT APPEAL IS NOT MAINTAINABLE. PB NO 6 - 8 13 - 7 - 2018 DATE OF FRESH APPLICATION UNDER SECTION 154 FILED B EFORE AO SEEKING RECTIFICATION OF CPC ORDER S PB NO 9 - 10 KALINDI PALACE 5 2. BEING AGGRIEVED WITH THE SAID ORDER THE APPELLAN T IS IN APPEAL BEFORE YOUR HONOUR AND HAVE TAKEN VARIOUS GROUNDS: FOR SAKE OF CONVENIENCE THE ISSUE INVOLVED MAY BE S UMMED UP AS UNDER: 2.1 THAT THE CIT (A) HAS ERRED IN LAW TO REJECT THE INC OME WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING FOR DE LAY CONDONED WHEN THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUS E THAT THE RECTIFICATION APPLICATION WAS NOT ADJUDICATED BY TH E LEARNED AO. (GROUND NO. 1,2 AND 5) 2.2 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED AO(CPC ) ERRED IN PROCESSING THE RETURN BY NOT ALLO WING EARLIER YEAR UNABSORBED DEPRECIATION OF RS 806966 TO THE DE CLARED INCOME OF RS NIL WITHOUT SPECIFYING THE REASON (GRO UND NO. 3 AND ) 2.3 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, EVEN ASSUMING THAT THE SAID CLAIM OF UNABSORBED DE PRECIATION IS DEBATABLE CLAIM, IT CANNOT BE MADE THE SUBJECT MATT ER OF PRIMA- FACIE ADJUSTMENT. (GROUND NO .4) 3 FACTS: 3.1 THAT THE CIT(A) HAS ERRED IN LAW NOT ENTERTAINI NG THE APPEAL U/S 249(2) WITHOUT AFFORDING ANY OPPORTUNITY OF HEA RING FOR DELAY CONDONED WHEN THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE THAT CPC HAS SPECIFICALLY STATED THAT THE RE CTIFICATION RIGHTS TRANSFERRED TO JURISDICTIONAL ASSESSING OFFI CER ON 25-6- 2013 PARA NO 5 -6 PG. NO _2 OF THE APPEAL ORDER, REPRO DUCES AS UNDER: IT IS OBSERVED THAT THE ORDER UNDER SECTION 154 AG AINST WHICH APPEAL HAS BEEN FILED WAS RECEIVED BY APPELLANT ON 16.02.2012.HOWEVER IT HAS BEEN FILED ON 18.7.2015.T HIS APPEAL HAS BEEN FILED AFTER MORE THAN THREE AND HALF YEARS OF COMMUNICATION OF ORDER. THE SAME IS MUCH BEYOND TIM E ALLOWED UNDER SECTION 249(2).IT IS ALSO SEEN THAT NO APPLIC ATION FOR KALINDI PALACE 6 CONDONATION OF DELAY WAS FILED NOT ANY GROUND OF CO NDONATION OF DELAY WAS TAKEN. FURTHER, IN THE WRITTEN SUBMISSION FILED, THE ISSUE OF DELAY IN FILING OF APPEAL OR ANY REQUEST F OR CONDONATION OF SUCH DELAY HAS NOT BEEN SUBMITTED. IN A COMPUTER IZED ENVIRONMENT, THE RETURN ARE FILED ON LINE AND THE R ELEVANT ORDER IS ALSO AVAILABLE ONLINE AND SENT BY E -MAIL. THEREFOR E, THE APPEAL IS DISMISSED FOR HAVING BEEN FILED BEYOND THE TIME ALLOWED UNDER SECTION 249(2).IT IS ALSO SEEN FROM THE COMMU NICATION FROM CPC DATED 11.06.2013 FILED BY THE APPELLANT THAT TH ERE IS AN ANNEXURE TO THE SAID COMMUNICATION WHICH SHOWS THAT APPELLANT HAS WITHDRAWN RECTIFICATION APPLICATION. 3.2 SUBMISSION: THE APPEAL WAS NOT ENTERTAINED BY THE LEARNED CIT ( A) ON TECHNICAL GROUND OF LIMITATION AND THE DOORS OF JUS TICE WERE SHUT TO THE ASSESSEE WITHOUT CONSIDERING THE PLEA OF THE ASSESSEE ON MERITS OF THE CASE. THE ASSESSE ELECTRONICALLY FILED RECTIFICATION APPL ICATION UNDER SECTION 154 OF THE ACT ON 11-6-13 TO ALLOW UNABSORB ED DEPRECIATION AS CLAIMED IN RETURN ON THE INTIMATION RECEIVED U/S 143(1) .THE CPC VIDE COMMUNICATION DATED 25-6-2013 REJECTED THE REQUEST FOR RECTIFICATION STATING RECTIFICATI ON RIGHTS TRANSFERRED TO AO. (COPY ENCLOSED AT PAGE NO PB NO 5) THE APPELLANT WAS UNDER THE IMPRESSION THAT THE DEP ARTMENT WILL RECTIFY THE ORDER OR WILL COMMUNICATE TO THE A SSESSE.IN FACT, NO RECTIFICATION ORDER NOR ANY COMMUNICATION WAS RE CEIVED BY THE JURISDICTIONAL AO .WHEN NO FORMAL COMMUNICATION WAS RECEIVED NOR THE PORTAL REFLECTED ANY AMENDMENT ,TH E ASSESSEES ONLY OPTION WAS TO FILE THE APPEAL . AT THE TIME OF HEARING OF APPEAL, IT WAS STATED THAT APPELLANT FILED RECTIFIC ATION APPLICATION BEFORE CPC .THE COMMUNICATION LETTER DATED 19-6-13 SHOWING THAT RECTIFICATION REQUEST IS REJECTED THEREAFTER S TATUS WAS MODIFIED AND COMMUNICATION LETTER DATED 25-6-13 REV EALS THAT RECTIFICATION RIGHT TRANSFERRED TO JURISDICTIONAL A O. THE QUESTION OF WITHDRAWN OF RECTIFICATION APPLICATION DOES NOT ARI SE AND THE FINDING OF THE LEARNED CIT(A)IS CONTRARY TO RECORDS . KALINDI PALACE 7 COPY ENCLOSED AT PAGE NO 5 3.3 IT MAY BE FURTHER STATED THAT AS PER- INSTRUCTI ON NO.3/2013[F.NO.225/76/2013/ITA.II], DATED 5-7-2013, IT HAS BEEN INSTRUCTED- RELEVANT PARA OF INSTRUCTION: IN RESPECT OF E-FILED RETURNS, THE RECTIFICATION AP PLICATIONS ARE ALSO FILED ONLINE. THE CPC WOULD BE REQUIRED TO IMMEDIAT ELY IDENTIFY WHETHER ACTION CAN BE TAKEN AT ITS OWN END OR IT HA S TO BE TRANSFERRED TO THE ASSESSING OFFICER FOR NECESSARY ACTION. IF CPC IS REQUIRED TO TAKE ACTION, IT WOULD DO SO WITHIN T HE TIME-FRAME PRESCRIBED. ON THE OTHER HAND, IF THE ASSESSING OFF ICER IS REQUIRED TO DISPOSE IT OFF, HE WOULD ENTER THE SAME IN THE ONLINE RECTIFICATION REGISTER, PROCESS IT ON AST AND SHALL AGAIN MAKE NECESSARY ENTRIES THEREIN ONCE THE SAME IS DISPOSED OFF. THE PRESCRIBED TIME LIMIT WOULD STRICTLY BE ADHERED TO IN THIS CASE ALSO. 3.4FROM THE PLAIN READING OF SAID PARA IT APPEARS T HAT JURISDICTION AO WARD 1(1) OF THE ASSESSE HAS TO SUO MOTO RECTIFIED ON THE BASIS OF THE APPLICATION RECEIVED THROUGH CP C DATED 25-6- 2013 MEANING THEREBY THERE IS NO NEED TO FILE THE F RESH APPLICATION .IT MAY FURTHER SUBMITTED THAT NO COMMU NICATION NOR ANY OPPORTUNITY WAS RECEIVED FROM THE DEPARTMENT TH E ASSESSE AGAIN FILED PHYSICAL APPLICATION ON 13-07-2018 WHIC H IS STILL PENDING AND HAS ALSO BEEN UNANSWERED. 3.5 IT HAS BEEN CONSISTENTLY HELD BY THE APEX COURT AND VARIOUS HIGH COURT THAT IN THE MATTER OF CONDONATION OF DEL AY, A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAKEN. THE REASONS GIV EN BY THE APPELLANT FOR THE DELAY APPEARS TO BE SUFFICIENT CA USE AND, ACCORDINGLY, THE DELAY IS LIABLE TO BE CONDONED. HENCE THE DELAY OF FILING OF APPEAL WAS CAUSED DUE TO PURSUING ALTERNATIVE REMEDY OF APPLICATION UNDER SECTION 154 WHICH AMOUNTS TO REASONABLE CAUSE AND IF ASSESSEE IS SEEK ING ALTERNATIVE OPTION THAN THE APPEAL SHOULD BE CONDON ED IN SUCH KALINDI PALACE 8 PROPORTION THE FOLLOWING CASE LAWS ARE RELEVANT. . 1. SRI SRI RAGHVENDRA V ASST COMMISSIONER APPEAL NO ITA NOS.2518 & 2519/BANG/2018 BHARAT AUTO CENTER VS. COMMISSIONER OF INCOME TAX (2005) 73 CCH 0661 ALLHC APPEAL [CIT(A)]CONDONATION OF DELAYREASONABLE CAU SE SINCE AN IMPORTANT LEGAL POINT RELATING TO JURISDIC TION OF THE ASSESSING AUTHORITY WAS INVOLVED, THE APPLICATION W AS ALSO FILED U/S 154, THE ASSESSE SOUGHT LEGAL OPINION OF SEVERA L COUNSEL WHICH TOOK A LONG TIME AND THEN A WRIT PETITION WAS FILED BUT SUBSEQUENTLY APPEAL WAS FILEDAFORESAID REASONS APP EAR TO BE SUFFICIENT CAUSE FOR THE DELAYDELAY OUGHT TO HAVE BEEN CONDONEDMATTER IS REMANDED BACK TO THE CIT(A) TO D ECIDE THE APPEAL ON MERIT. 3.6 IT IS PERTINENT TO MENTION OVER HERE THAT THE A PPLICATION UNDER SECTION 154 IS STILL PENDING BEFORE THE AO. THE APP ELLANT HEREBY HUMBLY PRAYS THAT THE DIRECTION MAY KINDLY BE GIVEN TO CONDONED DELAY BY THE HONBLE CITA SO THAT THEASSE SSE WOULD BE ABLE TO PROVE WITH COGENT EVIDENCES ITS CASE ON MERITS BEFORE THE LEARNED CIT (A) OR JURISDICTIONAL AO. SHREE DARSHAN CORPORATION VS. ASSISTANT COMMISSIONER OF INCOME TAX A. MOHAN ALANKAMONY, AM & KUL BHARAT, JM. (2013) 37 CCH 0292 AHDTRIB PRINCIPLE OF NATURAL JUSTICEOPPORTUNITY OF BEING H EARDCIT(A) DISMISSED APPEAL OF ASSESSE BEING FILED BEYOND PRES CRIBED STIPULATED PERIOD WITHOUT ACCOMPANYING APPLICATION FOR CONDONATION OF DELAYASSESSE CHALLENGED DISMISSAL O F APPEAL CONTENDING THAT CIT(A) HAD PASSED EX-PARTE ORDER WI THOUT GIVING OPPORTUNITY OF BEING HEARDHELD, ORDER PASSED BY CI T(A) SHOWS THAT ASSESSE HAD PREFERRED TO REMAIN ABSENT DURING APPELLATE KALINDI PALACE 9 PROCEEDINGS AND ALSO DID NOT FILE ANY APPLICATION F OR CONDONATION OF DELAY IN FILING APPEALTHOUGH REVENUE HAS MERITS IN SUBMISSION, HOWEVER, ONE MORE OPPORTUNITY FOR BEING HEARD IS PROVIDED TO ASSESSE IN THE INTEREST OF JUSTICEMATT ER ACCORDINGLY REMANDED BACK TO CIT(A) TO DECIDE CASE AS PER MERIT SAPPEAL FILED BY ASSESSE IS ALLOWED. 4 GROUND REGARDING ALLOWANCE OF UNABSORBED DEPRECIA TION CONSISTENTLY ALLOWED IN EARLIER YEAR AS WELL SUBSE QUENT YEAR: 4.1 SUBMISSION: IT MAY ALSO BE SUBMITTED THAT IN EARLIER YEAR AS W ELL AS IN SUBSEQUENT YEAR THE EFFECT OF THE UNABSORBED DEPREC IATION WAS CONSISTENTLY ALLOWED BY THE CPC WHILE PROCESSING TH E RETURN UNDER SECTION 143(1)A OF THE ACT AS THE UNABSORBED DEPRECIATION IN EARLIER YEAR AS W ELL AS IN SUBSEQUENT YEAR WERE CONSISTENTLY ALLOWED BY THE DE PARTMENT, THE SAME SHOULD HAVE BEEN ACCEPTED IN SUBJECT YEAR ALSO. 5. GROUND REGARDING UNABSORBED DEPRECIATION CANNOT BE MADE AS PRIMA FACIEADJUSTMENT : SUBMISSION EVEN ASSUMING THAT THE SAID CLAIM OF UNABSORBED DEP RECIATION IS DEBATABLE CLAIM, IT CANNOT BE MADE THE SUBJECT MATT ER OF PRIMA- FACIE ADJUSTMENT. THAT THE INTIMATION RECEIVED FROM THE CPC BANGALORE ,THE ADDITION HAS BEEN MADE WITHOUT MENTIONING ANY REASO N AND DETAILS, EVEN NO OPPORTUNITY WAS AFFORDED .IT IS SE TTLED LAW IN PROCESSING THE RETURN U/S 143(1) ONLY PRIMA FACIE A DJUSTMENT WAS PERMISSIBLE .IF THERE WAS ANY DEBATABLE CLAIM, IT CANNOT BE MADE U/S 143(1)A AS PRIMA FACIE ADJUSTMENT . 4.2 THE HONBLE ITAT INDORE BENCH IN THE CASE OF AC IT VS. SOM DISTILLERIES & BREWERIES LTD. IN ITA NO. 248/IND/20 12 ADJUDICATED AS UNDER: FROM THE RETURN OF INCOME AND ITS ACCOMPANYING DOCU MENTS, IT IS SEEN THAT THE APPELLANT HAD CORRECTLY COMPUTED THE TOTAL INCOME AT NIL FIGURE AND THE ITO, CPC HAD NOT ASSIGNED ANY JUSTIFICATION KALINDI PALACE 10 FOR NOT ALLOWING SET OFF OF THE BROUGHT FORWARD LOS SES OF RS. 7,95,38,033/- TO BE SET OFF AGAINST THE INCOME OF T HE CURRENT YEAR. THE FACTUAL INFIRMITY, IF THERE BE ANY, IN TH E COMPUTATION OF TOTAL INCOME FILED BY THE APPELLANT, WAS ALSO NOT S PECIFIED BY THE A.O. SECTION 143(1) DOES NOT AUTHORISE MAKING SUCH NON SPEAKING UNILATERAL ADJUSTMENTS. IT IS TRITE THAT U /S 143(1)(A) PRIMA FACIE ADJUSTMENTS IS PERMISSIBLE ONLY IN RESP ECT OF CLAIMS, THE INCORRECTNESS OF WHICH IS APPARENT FROM INFORMA TION IN THE RETURN. DEBATABLE CLAIMS ARE NOT LIABLE TO SUCH PRI MA FACIE ADJUSTMENTS. IN THE GIVEN FACTS AND CIRCUMSTANCES O F THE CASE, THE DENIAL OF THE IMPUGNED CLAIM, IN MY CONSIDERED VIEW, COULD BE DONE ONLY AFTER ISSUE OF NOTICE TO THE APPELLANT , SINCE THE NON- SPEAKING UNILATERAL DENIAL OF THE IMPUGNED CLAIM WA S CLEARLY OUTSIDE THE AMBIT OF PRIMA FACIE ADJUSTMENTS ENVISA GED IN SECTION 143(1)(A) OF THE ACT AND THAT THE A.O. DID NOT HAVE SUFFICIENT MATERIAL TO HOLD THAT THE IMPUGNED CLAIM WAS PRIMA FACIE INADMISSIBLE. UNDER THE PROVISIONS OF SECTION 143(1)(A) OF THE ACT, THE A.O. WAS NOT ENTITLED TO ALLOW OR DISA LLOW THE CLAIM BUT COULD ONLY MAKE ADJUSTMENT ON A PRIMA FACIE SCR UTINY OF THE RETURN AND THE ACCOMPANYING DOCUMENTS FILED BY THE APPELLANT. AS ALREADY STATED, SINCE THE IMPUGNED NON-SPEAKING UNILATERAL DENIAL OF THE APPELLANT'S CLAIM, WAS WITHOUT ISSUE OF NOTICE TO THE APPELLANT, IN MY CONSIDERED VIEW, THE A.O. TRAVELLE D BEYOND THE SCOPE OF THE POWERS CONFERRED UPON HIM BY SECTION 143(1)(A) AND THUS WRONGLY DISALLOWED THE IMPUGNED CLAIM WHICH BY NO STRETCH OF IMAGINATION COULD COME WITHIN THE AMBIT OF PRIMA FACIE ADJUSTMENTS U/S 143(1)(A) OF THE ACT. 5. ON THE OTHER HAND, LD. SR. DR OPPOSED THE SUBMIS SION OF THE LEARNED COUNSEL FOR THE ASSESSEE AND RELIED UPON TH E ORDER OF THE LD. CIT(A). 6. I HAVE GONE THROUGH THE WRITTEN SUBMISSION AND H EARD ARGUMENT OF LD. DR. I FIND THAT THE LD. CIT(A) DISM ISSED THE APPEAL KALINDI PALACE 11 ON TECHNICAL GROUNDS OF DELAY IN FILING OF APPEAL A ND WITHDRAWAL OF RECTIFICATION APPLICATION. HOWEVER, ON CONSIDERATIO N OF WRITTEN SUBMISSION FILED BY THE ASSESSEE, I FIND THAT THE A SSESSEE HAS CONTENDED THAT THE COMMUNICATION LETTER 19.06.2013 HAS SHOWN THAT RECTIFICATION REQUEST IS REJECTED AND STATUS W AS MODIFIED, ACCORDINGLY, RECTIFICATION RIGHT WAS TRANSFERRED TO JURISDICTIONAL AO. THEREFORE, THE QUESTION OF WITHDRAWAL OF RECTIFICAT ION APPLICATION DOES NOT ARISE THUS, THERE WAS NO NEED TO FILE FRES H APPLICATION. HOWEVER, SINCE NO COMMUNICATION NOR ANY OPPORTUNITY WAS RECEIVED FROM DEPARTMENT, THE ASSESSEE AGAIN FILED PHYSICAL APPLICATION ON 13.7.2018 WHICH IS STILL PENDING AND HAS ALSO BEEN UNANSWERED. HENCE, THE DELAY OF FILING OF APPEAL WAS CAUSED DUE TO PURSUING ALTERNATIVE REMEDY OF APPLICATION U/S 154 WHICH AMO UNTS TO REASONABLE CAUSE. THE ASSESSEE ALSO RELIED ON SRI SRI RAGHVENDRA V ASST COMMISSIONER APPEAL NO IT A NOS.2518 & 2519/BANG/2018; BHARAT AUTO CENTER VS. COMMISSIONER OF INCOME TAX (2005) 73 CCH 0661 ALLHC; SHREE DARSHAN CORPORATION VS. ASSISTANT COMMISSIONER OF INCOME TAX A. MOHAN ALANKAMONY, AM & KUL BHARAT, JM. (2013) 37 CCH 0292 AHDTRIB KALINDI PALACE 12 7. IN VIEW OF ABOVE FACTS AND ALSO THAT THE LD. CIT (A) DID NOT DECIDE THE CASE OF MERITS, I AM OF THE VIEW THAT IT WOULD BE IN THE INTEREST OF JUSTICE AND FAIR PLAY, IF ONE MORE OPPO RTUNITY OF BEING HEARD IS GRANTED TO THE ASSESSEE. ACCORDINGLY, I SE T ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO TH E FILE OF THE LD. CIT(A) WHO SHALL PASS THE ORDER ON MERIT CONSIDERIN G THE WRITTEN SUBMISSION FILED BEFORE ME. THE ASSESSEE IS DIRECTE D TO COOPERATE IN THE MATTER BY FILING ANY FURTHER EVIDENCE, IF ANY, IN SUPPORT OF THE CLAIM. THE LD. CIT(A) WOULD DECIDE THE APPEAL AFRES H IN TERMS AS INDICATED HEREINABOVE AFTER AFFORDING DUE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE AS PER LAW AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE/APPEAR BEFORE LD. CIT(A) IN THIS REGAR D. 8. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26.08.2 020. SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 26.08.2020 PATEL/PS KALINDI PALACE 13 COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE BY ORDER ASSISTANT REGISTRAR, INDORE