Adani Wilmar Limited, Ahmedabad V. The AO CPC, Banglore

MA 64/AHD/2023

AI Insights

Adani Wilmar Ltd. filed a Miscellaneous Application (MA) seeking rectification or recall of the ITAT's order dated 17.4.2023, which pertained to an adjustment made under section 143(1) of the Income Tax Act concerning employees' contributions to the NPS. The company argued that the adjustment was beyond the scope of section 143(1) as the contributions were made within the due date specified in the tax audit report. The Tribunal, however, noted that this issue had already been restored to the CIT(A) for a detailed examination and thus found no need for rectification or recall of the order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133626 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-10-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-10-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 23-07-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Section: 10AA; 143(1); 254(2)

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ ‘D’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER Misc.Application No.64/Ahd/2023 WITH ITA No.302/Ahd/2021 Assessment Year :2019-20 Adani Wilmar Ltd Ahmedabad. AO-CPC Bangalore. (Applicant) (Responent) Assessee by : Shri Biren Shah, AR Revenue by : Ms.Saumya Pandey Jain, Sr.DR स ु नवाई क तार ख/Date of Hearing : 06/10/2023 घोषणा क तार ख /Date of Pronouncement: 11/10/2023 आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER The present Misc. Application has been filed by the assessee seeking rectification or in the alternative adjudication of legal issue in the order passed by the Tribunal in ITA No.302/Ahd/2021 dated 17.4.2023. 2. It is pleaded in the MA, amongst other, that the assessee had argued in the course of hearing of its appeal that addition made by way of adjustment while passing intimation order under section 143(1) of the Act related to employees’ contribution to NPS, did not fall within the scope of 143(1) adjustment, and therefore, not MA No.64/Ahd/2023 2 considering this argument of the assessee while passing the impugned order amounts to apparent mistake crept in the order, which deserves to be rectified, and/or in the alternative, the impugned orderdated 17.4.2023 of the ITAT be recalled for the limited purpose of adjudicating the issue of validity of disallowance made through intimation under section 143(1) of the Act. The relevant pleadings of the assessee contained in para 3 and 4, which are reproduced hereinbelow: “3. During the course of hearing Ld. AR of assessee has argued that, addition made while passing intimation order u/s 143(1) of Rs.22,95,789 being employee contribution related to NFS scheme does not fall within the scope of 143(1) adjustment. During the course of hearing before the Hon'ble Bench, Ld AR of the assessee has read each clause of section 143(1) (i) to (vi) and submitted that in none of the said clause, this adjustment falls and therefore the same is beyond the scope or power given for making adjustment under section 143(1). The above said argument was taken up for the reason that the due date mention in tax audit report for deposit of employee contribution towards NPS is 30/11/2019 and all month NPS deposit has been made before the due date mentioned in TAX AUDIT REPORT that is 30/11/2019. (relevant page show during the course of hearing-pg no 24 of PB) . Therefore, the adjustment made is beyond the scope of 143(1). Further, it was submitted during the course of hearing that adjustment towards late payment of PF/ ESIC is made under clause (iv) of section 143(1) for the reason that, late payment of PF/ ESIC falls after the due date mentioned in the Tax Audit report, but which is not the case of the assessee and therefore adjustment made in the case of the assessee is beyond the scope of 143(1) adjustment. For the reference of Hon'ble Bench, relevant portion of Section 143(1) reproduced as under: 143. (1) Where a return has been made under section 139, or in response to notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:— (a) the total income or loss shall be computed after making the following adjustments, namely:— (i) any arithmetical error in the return; (ii) an incorrect claim, if such incorrect claim is apparent from any information in the return; (iii) disallowance of loss claimed, if return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139; (iv) disallowance of expenditure [or increase in income] indicated in the audit report but not taken into account in computing the total income in the return; MA No.64/Ahd/2023 3 (v) disallowance of deduction claimed under section 10AA or under any of the provisions of Chapter VI-A under the heading "C.—Deductions in respect of certain incomes", if] the return is furnished beyond the due date specified under sub-section (1) of section 139; or (vi) addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in computing the total income in the return: However, while passing order, inadvertently above stated argument was not considered and left to be adjudicated as well. 4. This being a reasonable cause in the interest of the natural justice and equity, otherwise it may cause great injustice and hardship to the applicant. Needless to say, for this act of kindness, the applicant as is duty bound shall forever pray and remain grateful. 5. It is, therefore, humbly submitted that the Hon'ble Bench of I.T.A.T. may kindly correct the mistake apparent from record by recalling the appeal for limited purpose i.e for adjudication of legal issue stated in para 3 or pass appropriate order by adjudicating the above referred legal argument of the assessee which has been inadvertently left to be decided while passing order, and oblige. 3. The ld.counsel for the assessee, while reiterating the contentions made in the MA submitted that the Tribunal has not dealt with the arguments of the assessee that no adjustment could have been made in the intimation made under section 143(1) of the Act on account of employees’ contribution to NPS for the reason that the tax audit report stating the deposits to be made within due date i.e. by the date of filing of return of income. In the present case, since due date mentioned in the tax audit report for deposits of employees’ contribution towards NPS was 30.11.2019, all the payments towards NPS deposits have been made before the due date, and therefore, adjustment made under intimation 143(1) lacks legality, and order of the ITAT to this extent be recalled and necessary rectification be made as argued by the assessee before the Tribunal. 4. On the other hand, the ld.DR strongly objected to the recalling of the impugned order, pointing out that the ITAT had restored the MA No.64/Ahd/2023 4 issue of disallowance of employees contribution to NPS back to the Ld.CIT(A) for adjudication afresh and all aspects of the disallowance therefore were open before the first appellate authority for adjudication. 5. We have heard both the sides, and gone through the impugned order of the ITAT dated 17.4.2023 (supra). We do not find any merit in the present Miscellaneous application. The order of the ITAT reveals that this specific contention of the assessee, that disallowance of employees contribution to NPS could not have been made in the intimation made u/s 143(1) of the Act, was noted. That thereafter it was found by the ITAT that the Ld.CIT(A) had adjudicated this issue on incorrect appreciation of facts dealing it as employees contribution to ESI/PF That therefore the ITAT restored the issue back to the Ld.CIT(A) to deal it afresh in the light of the facts of the case. There is no mistake therefore, we hold, in the order of the ITAT in dealing with the issue of disallowance of NPS contribution. The application filed by the assessee therefore warrants no interference in terms of section 254(2) of the Act. 6. In the result, MA is dismissed. Order pronounced in the Court on 11 th October, 2023 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad,dated 11/10/2023 vk*