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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora & Shri Manomohan Das
O R D E R
Per Sanjay Arora, AM
This is an Appeal by the Assessee agitating the dismissal of it’s appeal contesting the processing of it’s return of income per Intimation under section 143(1) of the Income Tax Act, 1961 ("the Act") dated 17.10.2013 for Assessment Year (AY) 2011-12, by the Commissioner of Income Tax (Appeals), Income Tax Department [CIT(A)], vide it’s Order dated 30.11.2022.
The brief facts of the case are that the assessee, as stated, a charitable trust registered under section 12AA of the Act, returned it’s income for the relevant year on 22.11.2012 at nil income in view of the ‘excess’ application of income u/s.11(1)(a) of the Act by Rs.2,09,060 (computation of income on record). The same was processed u/s.143(1) of the Act at Rs.18,56,540, raising a demand, inclusive of interest, of Rs.2,31,930. The assessee raised several grounds in appeal before the first appellate
ITANo. 58/Coch/ 2023 (AY 2011-12) Our Lady of Perpetual Help Church v. CIT(E) authority, including of the Intimation u/s. 143(1) of the Act being time barred inasmuch as it was received only on 19.3.2015. However, while the ‘assessment year’ as stated in Form 35 (the memo of appeal before first appellate authority under the Act) was ‘AY 2011-12’, the assessee perit’s written submissions dated 22.11.2022 in the appellate proceedings, stated the correct assessment year to be ‘2012-13’. Clearly, no appeal for AY 2012-13 could arise on the basis of an Intimation for AY 2011-12. The ld. CIT(A) accordingly dismissed the appeal stating as under: “It is evident that the Appellant has discussed all the figures considering its return for A.Y. 2011-12 even in its "Statement of Facts And Ground of Appeal". Since the Form-35 is a document which initiates pendency, the appeal is seriously flawed. Therefore, this office has no other option but to dismiss the appeal. Since no issue is left for adjudication as per Form- 35 received on 17/04/2015 with the CIT(A), the appeal is dismissed.” (at pg. 9) Aggrieved, the assessee is in second appeal.
Before us, it was submitted by Sh. Kumar, the learned counsel for the assessee, that stating the year of appeal in the appellate proceedings as ‘AY 2012-13’, was incorrect. Inasmuch as there has been, for that reason, no adjudication on merits, the appeal, setting aside the impugned order, be restored to the file of the first appellate authority for an adjudication afresh on merits. No objection thereto was raised by Smt. Devi, the ld. Sr. DR.
We have heard the parties, and perused the material on record. 4.1 Clearly and, without doubt, an appeal against an order could be only for the year for which the impugned order stands passed. There is, thus, no question of an order/intimation for AY 2011-12 being appealed against for AY 2012-13, or vice versa. However, our agreement with the ld. CIT(A) ends here. A mere browse of the appeal papers, i.e., Acknowledgment of the return of income filed on 22/11/2012; the computation of income and the audit report in Form 10B dated 04/11/2011accompanying it; the Intimation dated 17/10/2013, which is also deemed as a notice of demand; Form 35 – a verified document specifying the particulars of ITANo. 58/Coch/ 2023 (AY 2011-12) Our Lady of Perpetual Help Church v. CIT(E) the order appealed against, including the statement of facts forming part thereof, all unequivocally exhibit the order under appeal before him, as well as the appeal filed, as being for AY2011-12. What value, then, one may ask, the assessee stating before him of the said year as being AY 2012-13, which was clearly motivated to beat the impugned demand, raised for AY 2011-12 and, further, without any material? Why, the impugned order itself states the assessment year as ‘2011-12’, and which is further only on the basis of Form 35. We have already noted a complete internal consistency between all the documents forming part of the appellate record qua the assessment year for which the appeal stands filed before the first appellate authority. Rather than, therefore, raising an enquiry with the assessee about the basis for claiming the appeal to be for AY 2012-13 – which the assessee now states before us as being incorrectly so, with a view to satisfy himself in the matter, the ld. CIT(A) adopts the said unsubstantiated and baseless claim of the assessee as the basis for an in limine dismissal of the assessee’s otherwise competent appeal for AY 2011-12. He does not even issue a finding as to the appeal before him as being for an incorrect year, i.e., AY 2012-13. One could understand a controversy where Form 35 was for AY 2012-13, while the underlying documents were for AY 2011-12, in which case again the first appellate authority is required to determine the correct facts, and proceed accordingly upon issuing a clear finding/s in the matter. Under the circumstances, we have, therefore, no hesitation in, acceding to the assessee’s request, setting aside the impugned order, and restoring the appeal back to the file of the first appellate authority for adjudication afresh. All issues, including of the appeal, filed on 17/4/2015, being in time, are open before the ld. CIT(A).
4.2 We may though, before parting, opine on the legal issue of the Intimation being time barred inasmuch as the same forms the basis for raising the claim of it being for the following year, which stood accepted in first appeal in principle inasmuch as the ld. CIT(A) holds the Intimation as being for AY 2011-12 – making his final adjudication all the more quizzical – on the basis of the date of its service on Page 3
ITANo. 58/Coch/ 2023 (AY 2011-12) Our Lady of Perpetual Help Church v. CIT(E) 19/3/2015 being not proved (para 4 /pg. 9).An inverse finding inasmuch as a fact is inferred as proved on the basis of an unproved fact. Besides, it makes the appeal out- of-time, qua which his order is silent. The Intimation clearly specifies its date as ‘17.10.2013’, which is within time in view of the return having been filed on 22/11/2012.There is, thus, no question of it being time barred, i.e., its delayed service on the assessee, claimed to be on 19.3.2015, notwithstanding. Apart from the fact that the date of service is not proved, the said delay, which could be for several reasons, including change of address, etc., would not alter the date of the order under appeal. The law in the matter is well-settled, for which we may refer to the decision in CIT v. Mohammed Meeran Shahul Hameed [2021] 438 ITR 288 (SC), wherein it stands clarified that the date of receipt of an order, or even of its dispatch, cannot be equated with or understood as the date of its making or issue. The same represents trite law, toward which we may also refer to Bhagwan Das Oil Mills vs. CCIT2016 (28) STG 620 (MP). It is, further, again well-settled that the onus to prove that the apparent is not real is on the person who claims so (CIT v. Daulat Ram Rawatmull[1972] 87 ITR 349 (SC)). The processing of the assessee’s return is even otherwise through CPC, i.e., system driven. Merely doubting the year to which the Intimation relates, as the assessee does, is without any basis in law. We may at the same time also clarify that the where the delay in service of the Intimation is established, or otherwise admitted, the assessee shall not suffer and, consequently, be affected thereby, viz., the due date of filing the appeal; payment of demand; interest thereon, etc.