Biological E Limited , Hyderabad V. Dy. Commissioner of Income Tax , Circle-1(2), Hyderabad

MA 10/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2698 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 22-09-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 08-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”, HYDERABAD BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. No. 10/Hyd/2022 (Arising out of ITA No. 1191/Hyd/2018) (निर्धारण िर्ा / Assessment Year: 2013-14 ) Biological E-Ltd., Hyderabad [PAN : AAACB7873P] Vs Deputy Commissioner of Income Tax, Circle-1(2), Hyderabad (आिेदक / Applicant) (प्रत् यर्थी / Respondent) निर्धाररती द्िधरध / Assessee by: Shri V. Siva Kumar, AR रधजस् ि द्िधरध / Revenue by: Shri K.P.R.R.Murthy, DR स ु ििधई की तधरीख/Date of hearing: 23/09/2022 घोर्णध की तधरीख/Pronouncement on: 23/09/2022 आदेश / ORDER PER INTURI RAMA RAO, AM: By way of this miscellaneous application, assessee prays to recall the order dated 15/06/2021 passed in ITA No. 1191/Hyd/2018 on the ground of non-adjudication of a ground. 2. Grievance of the assessee in this matter as could be gathered from the miscellaneous application and the argument of the Ld. AR is that though the assessee filed the return of income well within time, due to the ITA.No. 10/Hyd/2022 Page 2 of 4 nuances involved in the working of the computer software, it reflected that the return of income was received on the next day, thereby the learned Assessing Officer inferring that the return of income was filed with the delay. Learned Assessing Officer, therefore, levy of interest under section 234A of the Income Tax Act, 1961 (for short “the Act”). When the assessee challenged the same before the Ld. CIT(A), according to the Ld. AR, Ld. CIT(A) also under the mistaken impression confirmed the levy of interest, which the assessee challenged before the Tribunal. 3. By drawing our attention to ground No. 3 taken by the assessee in the appeal before the Tribunal, Ld. AR submitted that the enquiry on the aspect of levy of interest under section 234A of the act was necessarily a question of fact, to be decided by the Tribunal, but the Tribunal while paragraph No. 11 observed that charging of interest under section 234A of the act is consequential in nature, and under that impression no adjudication was undertaken in respect of the actual date of filing of the return of income and whether or not the question of levy of interest under section 234A of the act arises. Ld. AR submitted that, in this matter the levy of interest under section 234A is not automatic are consequential, but retained is a question of fact to be decided by the Tribunal. 4. Per contra, Ld. DR submits that the matter these covered by the decision of the Hon’ble Supreme Court in the case of CIT vs. appellant’s telecommunications and in as much as the matter was disposed of on merits, it is not available for reopening under section 254 (2) of the act, and the as to be dismissed in limine. Ld. DR also admitted to the merits of the case, but according to us is not proper stage to look into the merits of the case, and, therefore, we confine ourselves to the aspect whether or not the ground properly taken in the appeal is addressed by the Tribunal or not. 5. We have gone through the record in the light of the submissions made on either side. Having regard to the facts and circumstances involved in this matter, the assessee is disputing the very facts adverted to ITA.No. 10/Hyd/2022 Page 3 of 4 by the Learned Assessing Officer giving raise to the levy of interest under section 234A of the Act stating that though the return was filed within time, due to the nuances involved in computer software working it was reflected that the return of income was received on the next day, and, therefore, it is a question of fact to be decided. There is no dispute that this ground is not adverted to by the Tribunal and it missed the attention of the Tribunal while passing the order dated 15/06/2021. We find that the ground of appeal No. 3 challenging the very levy of interest under section 234A of the Act remains un-adjudicated. It is a settled position of law that non-adjudication of a particular ground of appeal constitutes a mistake apparent from record capable of being recalled for fresh adjudication in accordance with law. therefore, we allow the present MA for the limited purpose of adjudicating Ground No. 3. 6. In the result, MA is allowed. Order pronounced in the open court on this the 23 rd day of September, 2022. Sd/- Sd/- (K. NARASIMHA CHARY) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 23/09/2022 TNMM ITA.No. 10/Hyd/2022 Page 4 of 4 Copy forwarded to: 1. Biological E- Limited, 18/1&3, Azamabad, Hyderabad. 2. Deputy Commissioner of Income Tax, Circle-1(2), Hyderabad. 3. CIT(Appeals)-1, Hyderabad. 4. Pr.CIT-1, Hyderabad. 5. DR, ITAT, Hyderabad. 6. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD