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Income Tax Appellate Tribunal, “B” BENCH, KOLKATA
Before: DR. MANISH BORAD, HON’BLE & SHRI SONJOY SARMA, HON’BLE
PER DR. MANISH BORAD, ACCOUNTANT MEMBER:
The above captioned appeal is directed at the instance of the assessee against the order of the National Faceless Appeal Centre, Delhi, (hereinafter the “ld. CIT(A)”), passed u/s 250 of the Income Tax Act, 1961 (“the Act”) for the Assessment Year 2020-21. 2. At the outset, the ld. Counsel for the assessee submitted that the impugned deserves to be set aside and the matter may be restored to the ld. CIT(A) on the ground that the impugned order is against the rejection of application u/s 154 of the Act. However, ld. CIT(A) has dismissed the assessee’s appeal by wrongly observing that the appeal of the assessee raised in similar grounds against the order u/s 143(1)(a) of the Act already stands decided in favour of the assessee and, therefore, appeal against the order u/s 154 of the Act becomes infructuous.
2 Assessment Year: 2020-21 Indian Institute of Social Welfare and Business Management
The ld. Counsel for the assessee referring to page 39 to 42 of the paper book submitted that the ld. First Appellate Authority has not adjudicated the appeal filed by the assessee u/s 143(1)(a) of the Act and the notice was received on 08/08/2023 by NFAC, requiring some more information with regard to the appeal filed by the assessee and the appeal is still not disposed off. On the other hand, the ld. D/R submitted that the appeal of the assessee deserves to be dismissed for the reason that if the appeal of the assessee is pending at the First Appellate Authority against the order u/s 143(1)(a) of the Act, the assessee can always come into appeal before this Tribunal in case he does not get relief and if in any case, appeal against the order u/s 143(1)(a) of the Act is already disposed off u/s 250 of the Act, then also , the present appeal deserves to be dismissed.
We have heard rival contentions and perused the material available on record. We notice that the assessee which is a Trust has approval u/s 10(23C)(vi) of the Act vide order dt. 18/07/2008. It furnished its income tax return for Assessment Year 2020-21 on 12/05/2021 claiming exemption u/s 10(23C)(vi) of the Act. However, in the return processed u/s 143(1)(a) of the Act, the exemption claimed by the assessee was denied. Against the order u/s 143(1)(a) of the Act, the assessee has preferred appeal before the ld. CIT(A) bearing no. NFAC/2019-20/10076646. Further we notice that the assessee in the meantime also filed application u/s 154 of the Act for the rectification of apparent mistakes committed by the CPC in the order u/s 143(1)(a)
3 Assessment Year: 2020-21 Indian Institute of Social Welfare and Business Management of the Act but having failed to succeed, preferred appeal before the ld. CIT(A) and the appeal no. allotted is NFAC/2019-20/10162883. 4. 1. The impugned order before us is against the order u/s 154 of the Act and the ld. CIT(A) vide its order dt. 17/08/2023 has dismissed the appeal as infructuous observing as follows:- “4.2.1 I have carefully gone through the submission of the Appellant. Assessee was denied exemption in order u/s143(1) against which appeal was filed. At the same time assessee also applied for rectification u/s 154 to AO, which was rejected and assessee has filed this appeal against this rejection of application u/s 154. This appeal was filed on same issues as appeal filed against order u/s 143(1). Since appeal against order u/s 154 is on same issues as order u/s 143(1) issues and that appeal has been allowed, this appeal become infructuous .Accordingly this appeal is dismissed as infructuous.”
As per the above finding of the ld. CIT(A), the assessee has already succeeded in the appeal filed against the order u/s 143(1)(a) of the Act. However, the ld. Counsel for the assessee has strongly objected to this finding of the ld. CIT(A) stating that the appeal against the order u/s 143(1)(a) of the Act is still pending for disposal and on 08/08/2023, the communication has been received from NFAC seeking certain more information which the assessee was required to furnish before 14/08/2023 and the assessee has duly replied enclosing the details called for by the NFAC. Subsequent to these submissions given on 09/8/2023, the assessee is still awaiting reply /passing of the order by NFAC.
Considering this fact that though similar issues have been raised by the assessee in the grounds of appeal taken against the order u/s 143(1)(a) of the Act and 154 of the Act but there is no proof available on record which show that the appeal of the assessee against the order u/s 4 Assessment Year: 2020-21 Indian Institute of Social Welfare and Business Management 143(1)(a) of the Act stands disposed off and, therefore, the finding of the ld. CIT(A) is not correct and since the issues have not been adjudicated on merits by the ld. CIT(A), we restore the issues raised in the instant appeal to the file of the ld. CIT(A)/NFAC for fresh adjudication and decide in accordance with law.
In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 20th December, 2023 at Kolkata. (SONJOY SARMA) ACCOUNTANT MEMBER Kolkata, Dated 20/12/2023 *SC SrPs
आदेश क" "ितिलिप अ"ेिषत/Copy of the Order forwarded to : 1. अपीलाथ" / The Assessee
""यथ" / The Respondent 3. संबंिधत आयकर आयु" / Concerned Pr. CIT 4. आयकर आयु" अपील ( ) / The CIT(A)- 5. िवभागीय "ितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाड" फाई/ Guard file.
आदेशानुसार/ BY ORDER