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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Pawan Singh (JM)
Per Shamim Yahya (AM) :- This appeal by the assessee is directed against order of learned CIT(A) dated 28.3.2018 and pertains to assessment year A.Y. 2014-15.
Grounds of appeal read as under :-
1 ) The order passed by the learned Commissioner of Income CIT(Appeals)-1, Mumbai (hereinafter referred to as 'the CIT (Appeals)' is illegal and invalid. 2) The learned CIT (Appeals) erred in disregarding the claim made by the assessee that the Assessing Officer was wrong in making adjustments which are not prima facie in nature. 3) The learned CIT (Appeals) erred in ignoring the claim made by the assessee that the amounts aggregating to Rs. 5,60,000 were donations towards corpus and not the income of the assessee.
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4) The learned CIT (Appeals) erred in ignoring the claim made by the assessee that Form no. 10B was electronically filed on Nov. 19, 2016 i.e. before the filing of the appeal before the learned CIT (Appeals).
5) The learned CIT (Appeals) erred in upholding the order of the Assessing Officer taxing the alleged income of Rs. 5,95,961 of the assessee at the maximum marginal rate.
6) The learned Assessing Officer erred in wrongly calculating education cess including secondary & higher education cess at Rs. 5,364 instead of Rs. NIL as shown in the return of income.
7) The learned Officer erred in wrongly calculating the interest under sections 23 4 A, 234B and 234C of the Act at Rs. 7,232, 43,392 and Rs. 6,689 respectively instead of Rs. NIL, Rs. NIL and Rs. NIL as shown in the return of income.
All the above grounds are without prejudice to one another.
Brief facts of the case can be gainfully appreciated from the order of learned CIT(A) as under :- “Briefly the facts of case are that the appellant has e-filed its 01.01.2015 without uploading the audit report in Form 10B. The CPC vide its order u/s 143(1) dated 12.03.2016 denied the exemption u/s. 11/12 of the IT Act Against this order, the appellant had filed an application u/s 154 of the Act with CPC, Bangalore on 11.06.2016. The CPC had rejected the rectification petition of the applicant vide its order 13.07.2016 giving the following reasons:- "Please refer to the rectification request filed by you for the Assessment Year 2014-15 in respect of above mentioned order received at Centralized Processing Center on 11.06.2016.
On verification, it is seen that there is no prima facie error in the order which you have sought to be rectified. Therefore, your application for Rectification under Sec.154 is rejected, for the following reasons:
As seen from the e-filed return of income filed by the assessee, the assesses has claimed exemption under section 11 but has not furnished details of audit in the SCH. Audit information and Audit report in form 10B is not E-filed."
Aggrieved by the rejection of 154 applications by CPC, the appellant has filed this appeal. The assessee had earlier preferred an appeal on the 3 Arum Foundation substantive order u/s 143(1) of the IT Act passed by CPC rejecting exemption benefits u/s 11/12 of the Act. The assessee had contended in both appeals that the Audit report in Form No.10B could not be uploaded due to technical glitches, and also because the trust was not conversant with new uploading system. But he had not provided any evidence of his problems nor he could file the Audit Report in Form 10B manually before AO/IT authorities despite it was ready according to his submission. In this background, the assessee has filed the rectification petition u/s 154 of the Act before CPC which was rejected and the denial of exemption benefits u/s 11/12 of the Act continued as decided by order u/s 143(1) of the I.T. Act by furnishing the same set of facts as submitted during appeal proceeding against u/s 143(1) order, the assessee has requested to consider his submissions for relief while deciding the appeal”.
Learned CIT(A) has held that he considered facts of the case and submission of the assessee. He noted that in the appeal against order u/s 143(1) of the Act for the same AY learned CIT(A) has dealt with the substantive default on the part of the, assessee and has dismissed the appeal due to failure on its part to comply with statutory requirement. He noted that the present appeal is against the rectification order u/s 154 of the Act passed by the CPC on 11.06.2016 on the same processing order u/s 143(1) of the Act, with the same set of the facts and circumstances for the same assessment year. In view of the above, learned CIT(A) held that he would like to continue with his stand and decline to Interfere with the findings of the CPC order u/s 154 of the IT Act. Accordingly, all the grounds of appeals were dismissed.
Against this order the assessee is in appeal before us.
We note that learned CIT in this case has dismissed the assessee's appeal by inter alia referring to his order in appeal filed against order passed under section 143(1) of the Act. There is no reference of the detail of his adjudication under section 143(1) of the Act in this order.
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Learned counsel of the assessee has prayed that the assessee has not received the said order of the learned CIT(A). Learned counsel of the assessee further contended that despite writing several RTI application he has not been able to obtain the said order of learned CIT(A).
We have heard both the counsel and perused the records. We find that the order by the learned CIT(A) is a laconic and non speaking order. In this view of the matter we remit the issue to the file of learned CIT(A). Learned CIT(A) is directed to consider the issue afresh and pass a proper and speaking order. Needless to add the assessee should be granted adequate opportunity of being heard.
In the result appeal filed by the assessee stands allowed for statistical purposes. Order has been pronounced in the Court on 19.8.2019.