KALLULLATHIL THAZHATHEVEETIL NASIR,MANATHAVADY vs. ITO,WARD-2, KALPETTA

Cases called twice. None appears at the behest of the assessee. He is accordingly proceeded ex parte.

The assessee pleads the following substantive ground in it’s “lead” appeal ITA.No.820/Coch./2023 :-

The learned first appellate authority erred in holding that the income offered for assessment during the previous year ended 31/03/2014, is liable to be taxed under section 115 BBE of the Act, ignoring the loss relating to house property. The appellant humbly submit that the provisions relating to not granting the los relating to house property if income is liable to tax under section 115BBE, is not applicable for the year under reference, as the said restriction came into force by Finance Act 2016 read with Circular No: 3/2017 dated 20/11/2007 only and hence have no application to the year under reference. This being a mistake apparent from record, was omitted to be considered by the assessing officer as well as the first appellate authority while passing the orders.

The learned first appellate authority patently also erred in holding that "the income offered for assessment fall within the ambit at section 69 as un explained investment and hence require to be taxed at the applicable rates as specified in section 115BBE of the Act effecting from assessment year 2013-14. Taxing on income under section 115BBE arise only if the identity of income is not established. As the appellant have established his source of income being business income, the amount offered for assessment should have been taxed under head "Business or Profession" and subject to regular tax. The learned appellate authority's version that all unexplained income liable to tax under section 69 is liable to be taxed under section 115 BBE is against the provisions of the Act.

The learned first appellate authority overlooked the settled provisions of law in this regard and held that the order passed under section 143 (3) read with section 147 is correct and there is no mistake apparent from record as submitted by the appellant, without even looking into the provisions of finance Act 2016, read with CBDT.F. No:370142/20/2016/TPZ and Circular No: 3/2017 dt.20/01/2017, which were all brought into his notice vide detailed argument notes.

Suffice to say, the assessee appears to have been raising its grievance before both the lower authorities action making addition u/s.69 unexplained investment r.w.s. 154 of the Act in the course of assessment dated 30th December, 2018. Learned DR submits that the assessee’s impugned rectification u/s.154 of the Act indeed raises debatable questions as per TS Balram, ITO vs. Volkart Brothers [1971] 82 ITR 50 (SC).

We find merit in the Revenue’s instant first and foremost legal objection contesting the assessee’s rectification in very terms. We are of the considered view that the proper course for the assessee is to invoke sec.246A r.e.s. 250 and 251 regular appeal mechanism before the CIT(A) than that of rectification route herein u/s.154 of the Act. We accordingly reject the assessee’s instant appeal with the liberty to follow alternative remedy as per law. This first and foremost appeal is dismissed.

Same order to follow in assessee’s latter appeal since raising identical substantive grounds. Ordered accordingly.