Milestone Gears Private Limited, Parwanoo V. DCIT/ACIT, Circle, Parwanoo

ITA 97/CHANDI/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3510 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Appeal Filed On: 21-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 15; 43B; 139; 143(1); 250

Judgement Text

आयकर य कर , य य “B”, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘B’, CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER ITA No. 97/Chd/2022 (Assessment Year: 2017-18) Milestone Gears Pvt. Ltd., 58, Industrial Area, Sector-1, Parwanoo. (HP). बनाम DCIT/ACIT, Parwanoo Deputy Commissioner of Income-Tax, CPC थायी लेखा सं./PAN NO: AAACM9431E नधा रती क ओर से/Assessee by : Shri Anil Khanna, CA राज व क ओर से/ Revenue by : Dr. Ranjeet Kaur, Sr. DR स ु नवाई क तार ख/Date of Hearing: 27.04.2022 उदघोषणा क तार ख/Date of Pronouncement: 28.04.2022 आदेश/ORDER Per Vikram Singh Yadav, Accountant Member: This is an appeal filed by the assessee against the order of Learned Commissioner of Income Tax ( A p pe a l s) , N a t i o n a l F ace l e s s A p pe al Ce n t re , D el h i [ i n s h o r t t h e ‘ L d . C I T( A ) ’ ] passed u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) dated 27.12.2021 wherein the assessee has taken the following grounds of appeal :- 2 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. 1. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of l a w, th e ap pe ll ate au tho r ity h as err ed in obse rv in g th at th ere was no r esp o nse f ro m ag ain s t th e no tic e d ate d 1 2 .12. 202 1 is sue d and d ec id in g th e ap pe al ex -p ar te . As the as ses se e h ad re que s te d f or ad jo urn me n t of th e c ase , on th e inc o me4 tax po r tal . T he orde r of th e C o mmis s ion er of Inco me T ax ( App e al s) be se t as id e and th e grou nds be co ns id ered on me r its . 2. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of l a w, th e ap pe ll ate au tho r ity h as err ed in obse rv in g th at th e re is no mis tak e app ar en t f ro m reco rd an d d is mis s in g th e grou nds of app e al. T he order of th e Co mmis s ion er of Inco me T ax (A ppe als) be se t as ide and th e add itio ns mad e be de le te d. 3. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of l a w, th e ap pe ll ate au tho r ity h as err ed in d is mis s ing th e g roun ds of ap pe al ob ser v in g th at the in ti mat io n u/s 143( 1) mak in g ad ju s tme n ts on th e deb atab l e is su es is no t r ec tif iable u/ s 15 4. T he ap pe ll ate o rd er be se t as id e and th e g rou nds be cons ide red on me r its . 4. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of la w, the as se ss in g of f icer h as e rre d in mak in g ad jus tme n t on ac cou n t of deb atab l e iss ue of del ay in dep os it of th e e mp l o yees con tr ib u tio n of PF/E S I. As the matte r is no t f all in g un der the amb it of ad ju s tme n ts as p rov id ed u /s 14 3( 1), th e add itio n mad e be d ele ted . 5. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of l a w, the as ses s in g o f f icer wh il e f r ami ng as se ss me n t und e r sec tio n 143 (3) in th e c ase of th e as se sse e f or th e A.Y 20 17- 18 h as no t mad e an y ad d itio n s on acc oun t of the ad ju s tme n ts mad e in the in ti mat io n u/ s 1 4 3(1) , th e add itio n s mad e be del e ted . 6. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of la w, the as se ss in g of f icer h as e rre d in d is al lo win g Rs . 27,6 1,1 17/ - o n ac co un t of del ay in depo s it of e mp lo y ees con tr ib u tio n to PF /ES I e tc. S in ce 3 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. th e amo un t is d epos ite d bef ore f il ing th e re tu rn of in co me und er sec tio n 139 (1) , th e s ame b e al lo we d . 7. As per f ac ts an d c irc u ms tan ces of th e c as e an d as per prov is io ns of la w, the as se ss in g of f icer h as e rre d in d is al lo win g Rs . 3 4,29 ,00 9/- on ac coun t of prov is ion of gr atu ity un der s ec tio n 4 0A( 7). S ince th e amo un t is sep ar ate l y d is al l o we d u nde r sec tion 43B th e s a me be no t d is all o we d ag ain . 8. T he ass ess ee cr aves per mis s io n to add or ame n d the ab ov e g rou nds at th e time of he ar in g.” 2. During the course of hearing, the ld. A/R submitted that the appeal of the assessee has been decided ex parte by the ld. CIT (A) in spite of the fact that the assessee has sought for the adjournment and thereafter even without considering the submissions subsequently filed by the assessee as apparent from the on-line portal of the department. It was further submitted that the ld. CIT (A) has also erred in stating that the adjustment so made by the CPC cannot be taken up in appeal against the order passed by the CPC under section 154 as against 143(1) of the Act. It was further submitted that on merits, the assessee has deposited the employees contribution towards PF/ESI before the due date of filing of the return of income and the matter is squarely covered by the various decisions of Chandigarh Benches of the Tribunal and other Benches where the relief has been allowed to the assessee. It was further submitted that regarding provision of Gratuity 4 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. disallowed under section 40A(7) of the Act while processing the return of income, the CPC has failed to take into consideration the fact that the assessee has suo moto disallowed the said sum under section 43B of the Act. It was accordingly submitted that the same led to double addition which cannot be sustained in the eyes of law. It was accordingly submitted that the appeal of the assessee be allowed and necessary relief be provided to the assessee. 3. Per Contra, the ld. D/R has relied on the findings of the ld. CIT (A) and our reference was drawn to the findings of the ld. CIT (A) which are contained in para 4.2 and 4.3 of his order which read as under :- “ 4. 2. It is pe r tin en t to me n tio n h ere th at th e ap pe al is no t ag ain s t the in timatio n or der u/ s 1 43(1 ). T he app ellan t h ad f ile d an ap pl ic atio n u /s 15 4 bef ore C PC. T here af ter , the CP C h ad p ass ed ord er u/s 154 re jec tin g th e req ues t of th e ap pell an t f or rec tif ic atio n of the mis tak e . It is ag ain s t th is orde r, the ap pe ll an t h as f il ed the p res e t ap pe al . T he or ig in al c aus e of ac tio n ar is es at th e s tag e of 143(1) its elf wh en the CP C h a proc ess ed th e re turn of in co me . T here af ter, the ap pell an t h as f iled r ec tif ic atio n app l ic atio n wh ich h as be en re jec te d an d ag ain s t th is, th e ap pe ll an t h ad f ile d th e p res en t ap p e al. 4.3. On per us al of the se f ac ts, it ap pe ars th at th e app ell an t is tr y in g to tak e b ac k doo r en tr y b y f il ing an ap pe al ag ain s t or der 5 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. u/s 15 4 f or wh ic h th e or ig in al c aus e of ac tio n h as ar is en at the s tag e of 143(1) its elf . As per the pro v is ion s of the Ac t, th e ap pe ll an t cou ld h av e f il ed an app e al ag ain s t th e intimatio n u/s 143( 1) of th e CP C. Ho we v er, the appe ll an t h as n o t filed an ap pe al ag ain s t th e in ti mat io n u /s 14 3(1 ). T here af ter, the ap pe ll an t h as f il ed a re c tif ic atio n app l ic atio n u/s 154 bef ore th e CPC . As p er th e rec tif ic at io n ord er u/s 154 d ate d 10.0 5.2 019 , th e CPC h as r e je c te d the re qu es t of th e ap pel l an t f or rec tif ic atio n o f mis tak e. T here is n o mis tak e ap p are n t f ro m reco rd at the s tag e of proceed in gs u/s 1 54. If at al l, th er e is a gr ie v an ce f or the ap pe ll an t, the s ame h ad ar is en at th e s tag e of in ti mat io n u /s 14 3(1) an d no t at the s tag e of 154. T heref ore, th e iss ue is n o t ad jud ic ate d he re in . Ac cor d in gl y, th e gro und of ap pe al is d is mis s ed.” 4. We have heard rival contentions and perused the material available on record. Given the fact that the case of the assessee has been decided ex-p ar te qua the assessee and we do not have the benefit of findings of the ld. CIT (A) in this case, we deem it fit to set aside the matter to his file to decide the same afresh as per law after providing opportunity to the assessee. Before parting, we would like to state that against the adjustments which have been made by the CPC while processing the return of income under section 143(1), the assessee has claimed to have moved rectification application under section 154 of the Act. Given the fact that the adjustment relates to disallowances under section 43B of the Act as 6 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. well as under section 40A(7) of the Act which are clearly apparent from the tax audit report filed by the assessee along with its return of income, these matters are clearly apparent from the record and clearly fall within the domain of rectification under section 154 of the Act. Therefore, we direct the ld. CIT (A) to examine this matter afresh after providing reasonable opportunity to the assessee. 5. I n the result, the appeal of th e assessee is a llowed for statistical purposes. O r d e r p r on o u n c ed o n 2 8 .0 4 . 2 0 22. S d / - S d / - ( DIVA SINGH ) (VIKRAM SINGH YADAV) याय क सद य/Judicial Member लेखा सद य/Accountant Member Dated: 28.04.2022 *Das* आदेश क % त&ल'प अ*े'षत/ Copy of the order forwarded to : 1. अपीलाथ+/ The Appellant 2. %,यथ+/ The Respondent 3. आयकर आय ु -त/ CIT 4. आयकर आय ु -त (अपील)/ The CIT(A) 5. 'वभागीय % त न0ध, आयकर अपील य आ0धकरण, च2डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड फाईल/ Guard File 7 ITA No.97/JP/2022 M/s. Milestone Gears Pvt. Ltd., Parwanoo. # $ स / By order, सह (ंज / Assistant Registrar Draft dictated 27.04.2022 Sr.PS Draft placed before author 28.04.2022 Sr.PS Approved Draft comes to the Sr.PS/PS 28.04.2022 Sr.PS Order signed and pronounced on File sent to the Bench Clerk 29.04.2022 Sr.PS Date on which file goes to the AR Date on which file goes to the Head Clerk. Date of dispatch of Order.