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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
Per Chandra Poojari, Accountant Member
This appeal by the assessee is directed against the order dated 30.9.2021 of the CIT(Appeals)-11, Bangalore for the AY 2009-10 on the following grounds:-
“1. The impugned order of the learned Commissioner of Income-tax (Appeals) passed under Section 250 of the Income Tax Act, 1961 is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case.
2. The learned Commissioner of Income-tax (Appeals) erred in holding that there was no response from the appellant in respect of the hearing fixed on 09.09.2021 when the appellant has filed a letter seeking adjournment of 14 days to file the documents and consequently the order passed is in violation of the principles of natural justice on the facts and circumstances of the case.
The learned Commissioner of Income-tax (Appeals) failed to appreciate that the notice issued under section 154/155 of the Act is without jurisdiction and further notice is bad in law on various reasons on the facts and circumstances of the case. 4. The learned Commissioner of Income-tax (Appeals) is not justified in law in confirming the withdrawing the tax payment of Rs.3,00,000/- claimed by the appellant and duly allowed by the learned Assessing Officer in the assessment order passed under section 153A of the Act dated 31.12.201( on the facts and circumstances of the case. 5. The learned Commissioner of Income-tax (Appeals) failed to appreciate that is not mistake apparent from the record of the present Assessing Officer in the assessment order passed under section 153A r.w.s 143(3) of the Act dated 01.03.2016 to invoke the provisions of section 154 of the Act since the credit of Rs.3,00,000/- was already given by the learned Assessing Officer at Hyderabad at the time of passing the assessment order u/s 153A of the Act dated 31.12.2010 on the facts and circumstances of the case. 6. The learned Commissioner of Income-tax (Appeals) without prejudice failed to appreciate that the learned Assessing Officer at Hyderabad ought to have issued notice if any for correcting the mistake apparent on record on the facts and circumstances of the case and the notice issued by the present learned Assessing Officer under section 154 of the Act is without jurisdiction on the facts and circumstances of the case.
The learned Commissioner of Income-tax (Appeals) failed to appreciate that the learned Assessing Officer erred in holding that the appellant furnished the cheque in favour of CIT (Central), Hyderabad when the appellant has produced the demand draft as evidence of payment and the assessment order passed by the learned Assessing Officer at Hyderabad in respect of payment of Rs.3,00,000/- on the facts and circumstances of the case.
8. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the appellant claimed said amount of Rs.3,00,000/- as advance tax paid in the return of income filed on 28.10.2009 itself before the learned Assessing Officer, Hyderabad and the learned Commissioner of Income-tax (Appeals) erred in holding that the appellant has not produced anything to support his claim that the said amount was towards advance tax on the facts and circumstances of the case. 9. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the appellant is not responsible in respect of credit is not shown in the OLTAS on the facts and circumstances of the case. 10. The learned Commissioner of Income-tax (Appeals) erred in confirming the withdrawal of the learned Assessing Officer a sum of Rs.2,00,000/- being tax credit given in the assessment order on the facts and circumstances of the case. 11. The learned Assessing Officer is not justified in law in levying the interest under section 234A, 234B and 234C of the Act on the facts and circumstances of the case. 12. The learned Assessing Officer is not justified in law in issuing the demand notice under section 156 of the Act for a sum of Rs.77,455/- on the facts and circumstances of the case.
The appellant craves for leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal
as may be necessary at the time of hearing.
14. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity.”
2. The assessee has also raised the following additional grounds:-
“1. The learned Assessing Officer is not justified in law issuing the notice under section 154 of the _Act vide dated 27.09.2017 in respect of/ rectification of the credit given in the assessment order passed on 21.12.2010 and the same is barred by time as per provisions of section 154(7) of the Income-tax Act, 1961 and consequently the order passed under section 154 of the Act is not sustainable in law on the facts and circumstances of the case.
The appellant craves leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal
as may be necessary at the time of hearing.
3. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity.”
3. However, the additional grounds were not pressed at the time of hearing and the ld. AR has made an endorsement to this effect on the petition for admission of additional grounds. Accordingly, the additional grounds are dismissed as not pressed.
The main issue in the appeal relates to the action of the AO in withdrawing the excess tax credit for advance tax and self-assessment tax. The facts in brief are that the assessment order under Section 153A r.w.s.
143(3) of the Act was passed by the AO on 01/03/2016 determining total income of the appellant at Rs.2,08,10,736/- and tax payable there on was determined at Rs.56,65,028/-. Later on, it was observed by the AO that excess tax credit for advance tax (Rs 2,00,000/-) and self-assessment tax (Rs 3,00,000/-) had been allowed to the appellant. So a notice under Section 154 of the Act was issued by the AO to the appellant. The appellant objected to the same. However, the AO proceeded with his action of rectification and passed an order under Section 154 of the Act on 24/10/2017.
Before the CIT(Appeals), the contention of the appellant is that the cash of Rs3,00,000/- seized during search in his case on 16/12/2008 should have been treated as advance tax for AY 2009-10. The said amount was deposited in the PD account of CIT(Central) after the search. The appellant has not produced anything to support his claim that the said amount was towards advance tax or even that any such request was made when the amount was deposited in PD account. As regards self- assessment tax of Rs 3,00,000/- the argument of the appellant is that he had paid self-assessment tax of Rs 5,00,000/- on 29.09.2009. The appellant has also argued that the tax credit for advance tax (Rs 2,00,000/- ) and self-assessment tax (Rs 3,00,000/-) was given by the AO at Hyderabad and the AO at Bangalore could not have rectified the order as it was not his mistake, if any, but that of the AO at Hyderabad. As such the appellant has argued that the AO at Bangalore was lacking jurisdiction to issue a notice under Section 154 of the Act.
The CIT(Appeals) observed that as regards the jurisdiction of the AO at Bangalore to issue notice under Section 154 of the Act, there isn't any merit in the arguments of the appellant. There is no such requirement of the Act. The 'Income-tax authority' passing the order as referred to in Section 154 is the one which is having jurisdiction over the assessee in whose case the order is sought to be rectified. So on change in jurisdiction, the new jurisdictional AO can do this and in case of transfer the successor AO can do so.
7. As regards merit of the rectification, the CIT(A) noted that the appellant has not brought anything on record to show that self-assessment tax of Rs 3,00,000/-was ever paid by him. The credit of amount of Rs 5,00,000/- paid by him on 29.09.2009 has already been 'allowed by the AO and the same is part of the total self-assessment tax of Rs 20,00,000/-, for which credit has been allowed by the AO. In relation to Advance tax, here again the appellant has failed to show that any advance tax of Rs 2,00,000/- was ever paid by him on 16.12.2008. The seized cash of Rs 3,00,000/- was paid into the PD account and as per provisions of Section 132B the seized cash could not have been adjusted against advance tax. However, as stated supra, even no such request was ever made by the appellant also. Hence, the CIT(Appeals) dismissed the appeal of the assessee. Against this, the assessee is in appeal before us.
Now the contention of the ld. AR is that the assessee has paid advance tax of Rs.25 lakhs, TDS of Rs.4,68,005 and self-assessment tax of Rs.5 lakhs. Further advance tax payment of Rs.25 lakhs includes Rs.3 lakhs by DD No.182622 drawn on SBI dated 22.12.3008 in favour of CIT (Central), Hyderabad. According to the ld. AR, the AO has not given proper credit of all the payments of tax made by assessee at various stages which is to be corrected at his end.
The ld. DR relied on the orders of lower authorities.
We have heard both the parties and perused the material on record. In our opinion, the assessee has to furnish details of different payments of tax by way of advance tax, TDS and self-assessment tax to the AO. The AO after verifying the same showing the various payments of tax by the assessee has to give due credit to those payments relating to the assessee’s account and pass fresh order in accordance with law, after giving opportunity of being heard to the assessee. Accordingly, the issue in dispute is remitted to the Assessing Officer for fresh decision.
In the result, the appeal by the assessee is partly allowed.
Pronounced in the open court on this 7th day of April, 2022.