MJUNCTION SERVICES LTD.,KOLKATA vs. DCIT, CIR. 1(1), KOLKATA

Present for: Appellant by : Shri Ashis Agarwal, CA Respondent by : Shri P. P. Barman, Addl. CIT, Sr. DR Date of Hearing : 15.04.2024 Date of Pronouncement : 18.04.2024 O R D E R

PER RAKESH MISHRA, ACCOUNTANT MEMBER:

“1.That on the facts and circumstances of the case, the Ld. Commissioner of Income-tax (Appeals) ['Ld. CIT(A)'] has erred on facts and in law in not adjudicating the grounds raised in appeal against the order under section 143(3) of the Income Tax Act, 1961 ('the Act') dated

07. December 2019.

Mjunction Services Ltd. , AY 2017-18 2 That on the facts and circumstances of the case, the Ld. CIT(A) in the impugned order has erred in law in adjudicating the grounds of appeal raised against intimation under section 143(1) dated 29 March 2019 instead of grounds of appeal in relation to Appeal No. CIT(A), Kolkata -1/10302/2019-20 filed against order passed under sec 143(3)

3. That the Ld AO erred in making a disallowance of Rs.13,03,224 under sec 14A read with Rule 80 of the Rules.

4. That on the facts and circumstances of the case, the Learned Assessing Officer ('Ld. AO') has erred on facts and in law in mechanically making the additions under section 14A of the Act r.w. Rule 80 of the Rules without providing any cogent reasons as to why the Ld. AO is not in agreement with the suo-mote disallowance made by the Appellant in its return of income. 5 The Ld AO erred in not applying the ratio of ITAT decision of ACIT vs. Vireet Investment Pvt Ltd. (ITA 502/Del/2012 dated 16/06/2017)(Delhi Tribunal (SB)) though the same was specifically argued by the assessee before the AO and in ignoring the fact that the suo moto disallowance was higher than the disallowance computed applying the ITAT decision of Vireet Investments(supra).

6. The Appellant craves leave to add to or alter, by deletion, substitution or otherwise, any or all of the above grounds of appeal, at any time before or during the hearing of the appeal.”

2. The appeal of the assessee is time barred by 120 days and condonation petition has been filed. However, as is discussed in subsequent paragraphs, since the Ld. CIT(A) has not decided the appeal filed against the order u/s. 143(3) of the Act by the AO, as the grounds decided are those which emanate from the order of the AO u/s. 143(1), therefore, the appeal against the order u/s. 143(3) of the Act is still pending for adjudication before the Ld. CIT(A) and the application for condonation of delay becomes infructuous being premature.

3. Ground nos. 1 and 2 relate to the Ld. CIT(A) not adjudicating the grounds of appeal raised in the appeal against the order passed u/s. 143(3) of the Act dated 07.12.2019 and instead adjudicating grounds of appeal raised against intimation u/s. 143(1) dated 29.03.2019.

. Para 4 relating to the decision of ld. CIT(A) is extracted as under: “From the above, it is clear that the appellant is not pressing any of the grounds of appeal. It is found from the perusal of documents submitted by the appellant, that order u/s. 143(3) of the Act and consequential order u/s. 250 of the Act have already been passed in this case. Further the Assessing Officer has also passed order u/s. 154 dated 17.10.2022. Therefore, it is concluded that when the order u/s. 250 of the Act, vide order dated 04.08.2022, has already been passed by the CIT(A), in the appeal against the order u/s. 143(3), the present appeal against the order u/s. 143(1) of the Act becomes infructuous. Therefore, the appeal of the appellant is dismissed. and thereby appeal of the assessee has been dismissed since the appeal against the order u/s. 143(1) of the Act had become infructuous.

8. We have examined the facts and heard rival submissions and carefully perused the material available on record. We note that serious discrepancy has crept in both the orders of the Ld. CIT(A) and while the order mentioning the appeal against sec. 143(3) with the date of order being 07.12.2019 is in effect and in substance an appeal against the intimation u/s. 143(1), however, the appeal filed against the order u/s. 143(3) before the Ld. CIT(A) has remained to be adjudicated upon. In the grounds of appeal at Sl. Nos. 3, 4 and 5 the assessee has challenged the addition u/s. 14A read with Rule 8D of the Rules which has not been adjudicated upon by the Ld. CIT(A). At the time of hearing, we were inclined to pass an order on facts. However, on reappraisal of the facts, we note that since the appeal against the order u/s. 143(3) has not yet been decided by the Ld. CIT(A) and in fact two orders have been passed