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Income Tax Appellate Tribunal, MUMBAI BENCHES “C”, MUMBAI
Before: SHRI B.R. BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
O R D E R
PER RAM LAL NEGI, JM
This appeal has been filed by the assessee against order dated 02.11.2016 passed by the Ld. Commissioner of Income Tax (Appeals) (for short ‘the CIT (A)’)-13, Mumbai, for the assessment year 2005-06, whereby the Ld. CIT (A) has dismissed the appeal filed by the assessee against rectification order passed by the AO u/s 154 of the Income Tax Act, 1961 (for short ‘the Act’).
2. As per the pleadings of the appellant/assessee, the assessee filed an application u/s 154 of the Act for granting credit of tax deducted at source. But, the AO rejected the same. The assessee challenged the action of the AO by 2 Assessment Year: 2005-06 filing appeal before the Ld. CIT (A). The Ld CIT(A) dismissed the appeal in limine holding that the assessee has not filed the order rejecting the application u/s 154 of the Act.
3. Aggrieved by the impugned order passed by the Ld. CIT (A), the assessee has preferred the present appeal on the following grounds:-
“Ground No. 1: Dismissal of appeal by CIT-(A) by holding the order u/s 154 of the Act passed by the AO as not an appealable order is bad in law:-
1. On the facts and in the circumstances of the case and in law, Hon’ble CIT (A) erred in dismissing the appeal filed before him merely on the ground that order passed u/s 154 of the Act dated December, 13, 2013 is in letter format and thus is not an ‘appealable order’.
2. Hon’ble CIT (A) failed to appreciate and ought to have held that: a. No specific format has been prescribed under the Act for passing an order under the Act, b. The order passed by the AO is in effect an order u/s 154 of the Act as the AO has specifically stated that the mistake pointed out is not apparent from the record and hence rectification application is rejected. c. Substance of an order canot be ignored merely because of its form, and d. It is not control of an assessee to ensure that an order passed by the AO is in a particular format and thus an assessee cannot be punished/put to hardship on account of a procedural defect on part of the AO. 3. The Appellant prays that it be held that the order passed by theAO is an appealable order and the appeal deserves to be heard on the merits of the case.
3 Assessment Year: 2005-06 Without prejudice to Ground No. 1 Ground No. Ii” Non grant of TDS credit of Rs. 1,35,05,678/- claimed on the income of Rs. 6,39,28,378/- offered to tax during the year under appeal: 1. On the facts and in the circumstances of the case and in law, the AO erred in rejecting the application u/s 154 filed by the assessee as TDS credit ought to be granted in the year in which the corresponding income has been charged to tax.
He failed to appreciate and ought to have held that: a. TDS credit ought to be granted in the year in which the corresponding income has been charged to tax irrespective of whether such claim is made or not by the assessee. b. Non grant of TDS credit of Rs. 1,35,05,678/- on income of Rs. 6,39,28,378/- offered to tax in AY 2005- 06 is a mistake apparent from record which ought to be rectified, and c. Revenue cannot retain the amount of tax duly deducted and deposited with the Government as it is contravention of Article 265 of the Constitution of India.
The Appellant therefore, prays that the AO be directed to give full credit TDS of Rs. 1,35,05,678/- for the year under appeal.”
Before us, the Ld. counsel for the assessee submitted that the assessee had filed its return of income for the assessment year under consideration declaring the total loss of Rs. 13,66,508/- under the normal provision of the Act. The assessee filed letters for claiming TDS of Rs. 1,35,05,678/0 for the A.Y. 2005-06. In response thereof, the AO passed order u/s 154 of the Act 4 Assessment Year: 2005-06 dated 13.12.2013 for the assessment year under consideration rejecting the claim. The Ld. counsel further submitted that the assessee has offered its income for the assessment year under consideration against which the assessee should be allowed to claim credit of TDS in the same year even though the company had not claimed the credit for the same in its return of income of that assessment year. Since, the assessee had not claimed TDS credit of the aforesaid amount in its return of income for the next A.Y. 2006- 07.
On the other hand, the Ld. Departmental Representative (DR) relying on the order passed by the Ld. CIT (A) submitted that since the assessee has failed to submit the copy of impugned order passed u/s 154 of the Act, the Ld. CIT (A) has rightly dismissed the appeal in limine. 6. We have heard the rival submissions and also gone through the impugned order passed by the Ld. CIT (A). The relevant portion of the order of Ld. CIT (A) reads as under:- “…The issue here is that there is no order under section 154 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) in the first place. Section 246A of the Act lists out the appealable orders. A simple letter by the AO can by no stretch be termed as an appealable orders taken to have been passed under section 154 of the Act, rectifications orders having been included in the list of orders given in section 246A of the Act. In these circumstances, I am of the considered view that the primary requirement of the availability of an appealable order has itself not been fulfilled in this appeal. I am accordingly constrained to dismiss it in limine. Before parting I may add that the appellant has also sought to rely on another decision viz. CIT v. OCM (India) P. Ltd. However, neither a copy of said decision has been provided, nor has any citation been included in the submissions. In these circumstances, I have not gone into the applicability of that said decision to the facts of this case”.