PARAS KUHAD, JAIPUR V. DCIT, Circle-7, Jaipur

MA 6/JPR/2023

AI Insights

The case revolves around a Miscellaneous Application filed by Shri Paras Kuhad against the order of the ITAT dated 26-09-2022, which pertained to the assessment year 2017-18. The application sought to rectify what the assessee claimed was a mistake apparent on record concerning an intimation order dated 25-03-2019, which allegedly was not reflected in the online system and thus led to an incorrect assessment. The Tribunal had previously allowed the appeal on the grounds that the intimation and consequent demand were not reflected in the system and had merged into the order passed under section 143(3) of the Income Tax Act. However, a subsequent notice under section 154 issued by the Assessing Officer attempted to rectify this by adjusting the income as per the intimation order, which led to the current application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132463 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-02-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 10-01-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 154; 143(3); 143(1)

Judgement Text

vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR JhlaanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Miscellaneous Application No.6/JP/2023 (Arising out of vk;djvihy la-@ITA No. 260/JP/2022) fu/kZkj.ko"kZ@AssessmentYear : 2017-18 Shri Paras Kuhad 3-7.3-9. Ganpati Plaza, M.I. Road Jaipur cuke Vs. The DCIT Circle-7 Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACWPK 8738 R vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Manish Agarwal jktLo dh vksjls@Revenue by: Smt. Runi Pal, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing : 28/02/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 29 /03/2023 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM The assessee has filed a Miscellaneous Application u/s 254 (2) with a view to rectifying the mistake apparent on record in the ITAT order dated 26-09-2022 in ITA No. 260/JP/2022 for the assessment year 2017-18. 2 MA NO. 6/JP/2023 SHRI PARAS KUHAD VS DCIT, CIRCLE-7, JAIPUR 2.1 During the course of hearing, the ld. AR of the assessee prayed for consideration of the Misc. Application mentioning therein as under:- ‘’1. That, the abovementioned appeal i.e. ITA No.: 260/JP/2022 was filed by the appellant against the order of Ld. CIT(A), NFAC, New Delhi which was decided by this Hon'ble Bench on 26.09.2022. 2. That, in concluding para 9 at page 10 of abovementioned order dated 19.11.2020, this Hon'ble Bench observed that ".....Since, we have considered the appeal of the assessee on technical aspects without going into the merits of the issue appeal of the assessee is allowed in terms of the observations made above." 3. Accordingly the appeal of the assessee was allowed for the reasons stated in para 8 atpage 10 of the order which are as under: 8. Since, the very basis being the intimation dated 25.03.2019 is not reflected on the system and the consequent demand or adjustment already merged into the order of the AO passed u/s 143(3) of the Act. There cannot remain any grievance on account of intimation dated 25.03.3019. Even the ld. AO has submitted a factual report and submitted that the intimation u/s. 143 (1) dated 25.03.2019 is not reflected into the online system and consequent demand there upon also. Thus, once the intimation which the very cause of the grievance of the assessee is not reflected and existed on records the consequent grievance also not existed and thus the appeal of the assessee becomes infructuous 4. That, as per abovementioned order in ITA No.260/JP/2022, Hon'ble bench has very kindly accepted the appeal of the assessee on the ground that the ld. AO in the report submitted during the course of hearing of the matter on the status of application u/s 154 filed by the assessee against the intimation order, himself has admitted that the adjustment made vide impugned intimation order dt. 25.03.2019 is not reflecting in the online system of the Income Tax department and demand so created vide such intimation is also not appearing. Moreover it is further observed by the ld. AO that in the order passed u/s 143(3) dt. 20.12.2019, the income declared at Rs 6,19,02,760/- has been taken. Thus based on such factual status report, the Hon’ble bench was of the view that same stood merged in the order passed u/s 143(3) and under these circumstances their remained no grievance to the assessee. However, now despite of this categorical averment by the d. AO himself, vide notice dt. 12.12.2022 issued by ld. AO u/s 154 it is proposed to make the rectification of the order passed u/s 143(3) so as to incorporate the income computed at Rs.10,57,02,690/- vide intimation order passed u/s 143(1)(a) dt. 25.03.2019 as against Rs. 6,19,02,760/- taken by the then Assessing Officer in the assessment order passed u/s 143(3) dt. 20.12.2019, copy of notice issued u/s 154 is annexed as "Annexure-A" to this application. 3 MA NO. 6/JP/2023 SHRI PARAS KUHAD VS DCIT, CIRCLE-7, JAIPUR 5 Since in the appeal filed by the assessee in ITA No. 260/JP/2022, assessee has challenged the adjustment made in the intimation dt. 25.03.2019 wherein the income declared by the assessee at Rs. 6,19,02,760/- was enhanced to Rs. 10,57,02,690/- and based on the report filed by the AO, the hon'ble bench has not decided the issue on merits but as now ld. AO vide notice u/s 154 again made an attempt to re-alive the issue of adjustment made in the total income of the assessee done through intimation dt. 25.3.2019, it become necessary to have your honours kind intervention in the matter to decide the issue on merits also. 6. In view of the facts as narrated above, it is submitted that not deciding the issue on merits is a mistake apparent on record, therefore, it is humbly prayed that the appeal of the assessee may kindly be adjudicate on merits also.’’ 2.2 During the course of hearing, the moot issue raised by the assessee is that the AO vide his notice dated 12-12-2022 has again initiated the proceeding u/s. 154 of the Act for the issue which has already been decided by the bench after calling for the report of the ld.AO. The content of the notice issued is reiterated here in below: ‘’It is noticed that vide order u/s 143(3) dated 25-03-2019, the CPC has computed your total income at Rs.105702690/-. You have filed appeal before CIT(A) against the order u/s 143(1) dated 25-03-2019 on 25-04-2019 which was pending at the time of framing the assessment order u/s 143(3). In the assessment u/s 143(3) dated 20-12-2019, the AO has wrongly taken the returned income at Rs.61902760/- instead of Rs.105702690/-. The reply in this regard may be sent within 10 days at the receipt of this letter/ notice.’’ 2.3 On the other hand, the ld. DR accepted the fact the order passed u/s. 143(3) merged with the order u/s. 143(1) and this has been confirmed by the ld. AO before the bench vide his report dated 23.08.2022. 4 MA NO. 6/JP/2023 SHRI PARAS KUHAD VS DCIT, CIRCLE-7, JAIPUR 2.4 We have heard both the parties and perused the materials available on record. It may be noted that the Bench has passed the order dated 26-09-2022 in ITA No. 260/JP/2022 for the assessment year 2017-18 against the order of the ld. CIT(A), NFAC, Delhi dated 17—07-2022 for the assessment year 2017-18 holding as under:- ‘’8. Since, the very basis being the intimation dated 25.03.2019 is not reflected on the system and the consequent demand or adjustment already merged into the order of the AO passed u/s 143(3) of the Act. There cannot remain any grievance on account of intimation dated 25.03.3019. Even the ld. AO has submitted a factual report and submitted that the intimation ws. 143 (1) dated 25.03.2019 is not reflected into the online system and consequent demand there upon also. Thus, once the intimation which the very cause of the grievance of the assessee is not reflected and existed on records the consequent grievance also not existed and thus the appeal of the assessee becomes infructuous. 9. Since we have considered the appeal of the assesee on technical aspects without going into merits of the issue, appeal of the assessee is allowed in terms of the observations made above. 10. In the result, the appeal of the assessee is allowed. 2.5 Now we fail to understand as to why Department is raising time and again the same issue which is settled and decided by the bench where in the revenue was requested to present the correct fact. At the time when hearing was held in connection with the appeal of the assessee revenue fairly accepted by ld. AO report dated 23.08.2022 that “ The AO in the order u/s.143(3) dated 20.12.2019 has also taken the returned income. It is so submit that the contents / facts of rectification application dated 23.04.3019 have not been discussed by the AO in the assessment order.’’ 2.6 Once the revenue fairly accepted the fact that impugned intimation does not survive after the order passed u/s. 143(3), there is no question of making the issue 5 MA NO. 6/JP/2023 SHRI PARAS KUHAD VS DCIT, CIRCLE-7, JAIPUR alive by invoking the provision of section 154 of the Act which jeopardize the position of the Department that the concerned officer does not make up his mind as to what demand should be determined upon the assessee whereas the issue has already been adjudicated upon by the ITAT vide its order dated 26-09-2022 in which the AO has also participated. Thus the Bench observes that this conduct of the Revenue Officer is misleading to the Bench and simultaneously affects the ld. DR appearing on behalf of the Revenue. Such type of tactics should be avoided by the Department and does not create the demand at the back of the assessee and that too once the matter is decided by the bench. The Bench within its jurisdiction does not appreciate the Department to raise such demand u/s 154 of the Act. However, the decision taken by the Bench vide its order dated 26-09-2022 shall remain in vogue and we do not find any infirmity in its order (supra). Thus the Misc. Application filed by the assessee has no merit as the bench has decided the issue based on the fact made available by the ld. AO and thus, the present MA is dismissed. 3.0 In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open Court on 29-03-2023 Sd/- Sd/- ¼lanhi xkslkbZ½ ¼jkBksMdeys'kt;UrHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 29/03/2023 6 MA NO. 6/JP/2023 SHRI PARAS KUHAD VS DCIT, CIRCLE-7, JAIPUR *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Shri Paras Kuhad, Japur. 2. izR;FkhZ@ The Respondent- The DCIT, Circle-7,. Japur. 3. vk;djvk;qDr@ The ld CIT 4 foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File (MA No. 6/JP/2023) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar