SIDHARTH CO-OPERATIVE CREDIT & THRIFT SOCIETY LIMITED,DURG vs. INCOME TAX OFFICER-2(1), BHILAI, BHILAI
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Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee society is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 07.09.2022, which in turn arises from the order passed by the A.O under Sec.154 of the Income-tax Act, 1961 (in short ‘the Act’) dated 13.05.2022 for the assessment year 2018-19. The assessee has assailed the impugned order on the following grounds of appeal:
“1. In the facts & under the circumstances of the case, the ld. Commissioner of Income Tax - Appeals (NFAC) erred in upholding the order passed by CPC denying deduction u/s 80P. The appellant is entitled for deduction which has been wrongly disallowed; 2. In the facts & under the circumstances of the case, Commissioner of Income Tax -Appeals (NFAC) erred in not appreciating that the prima facie adjustment made u/s 143(1)(a) is not in accordance with provisions of law. Denial of deduction u/s 80P by way of prima facie adjustment is an apparent mistake, rectifiable u/s. 154. 3. In the facts and under the circumstances of the case, the Ld. Commissioner of Income-tax (NFAC) has erred in dismissing the appeal of the appellant while upholding the order of the assessing officer taking resort of provisions of sections 139(1) & 80AC in rejecting the application of the appellant under section 154; 4. The appellant reserves the right to add, amend or modify any of the ground/s of appeal.”
At the threshold of hearing of the appeal, we find that the appeal filed by the assessee is time-barred by 24 days. The assessee has filed a letter
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dated 08.08.2023 a/w. an “affidavit” seeking condonation of delay stating as under:
“Reason for delay The case of assessee was being represented by another counsel upto the first appeal stage. For preparation and arguing the appeal before ITAT, the assessee wanted to engage some other counsel who was practicing in litigation matters. Looking for and appointing new counsel took some time because of the time barring tax audit and due date of filing of returns (07.11.2022). The new counsel also took some time to prepare the second appeal. All these facts resulted into delay. 3. The reason for delay in filing appeal is thus beyond control of assessee and the assessee was prevented by sufficient cause in not filing the appeal within the prescribed time. An affidavit deposing the above facts is enclosed.”
The Ld. A.R submitted that as the assessee was earlier represented by his regular counsel who was not conversant with appellate proceedings before the Tribunal; therefore, some time was involved in engaging a new counsel. Apart from that, it was submitted that as the new counsel at the relevant point of time was busy with the time barring tax audit reports and returns of income, and also took some time to file the present appeal; therefore, some delay for no fault of the assessee had occasioned in the filing of the same.
Per contra, the Ld. Departmental Representative (for short ‘DR’) raised an objection to seeking of condonation of delay involved in the appeal filed by the assessee.
After thoughtful consideration of the reasons stated in the application for condonation of delay, it transpires that as the delay of 24 days in filing of
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the present appeal had occasioned because of circumstances that could neither be attributed to any deliberate conduct nor any lackadaisical approach on the part of the assessee appellant, thus, we condone the same.
Succinctly stated, the assessee, a Co-operative Society engaged in providing credit facilities to its members, had filed its return of income for A.Y.2018-19 on 25.01.2019, declaring an income of Rs. Nil after claiming deduction of Rs. 16,47,750/- u/s. 80P(2)(a)(i) of the Act. The return of income filed by the assessee society was processed u/s. 143(1) of the Act, wherein after declining its claim for deduction u/s.80P, its income was determined at Rs.16,47,750/-.
Aggrieved the assessee assailed the intimation issued by the A.O u/s. 143(1)(a) of the Act before the CIT(Appeals), which, however, was dismissed on 19.04.2022.
Subsequently, the assessee society filed a rectification application u/s.154 of the Act on 02.05.2022 before the A.O. against the intimation issued u/s. 143(1)(a) dated 07.06.2019. The aforesaid application filed by the assessee u/s. 154 of the Act was dismissed by the A.O. vide his order dated 13.05.2022.
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Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without success.
The assessee, being aggrieved with the order of the CIT(Appeals), has carried the matter in appeal before us.
We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and material available on record. As the appeal of the assessee society against declining of its claim for deduction u/s 80P(2)(a)(i) vide intimation u/s 143(1)(a), dated 07.06.2019, was dismissed by the CIT(Appeals) vide his order dated 19.04.2022, therefore, the said intimation u/s 143(1)(a) (supra), to the said extent merged in the order of the CIT(Appeals). Although the assessee society thereafter on the aforesaid issue, i.e., declining of its claim for deduction u/s 80P(2)(a)(i) had vide its application filed with the A.O u/s 154 of the Act dated 02.05.2022 sought for rectification of the intimation issued u/s 143(1)(a), dated 07.06.2019, but the said application as per the mandate of sub-section (1A) of Section 154 of the Act was in itself not maintainable. We, say so, for the reason, that as per the doctrine of merger, after the intimation issued u/s 143(1)(a), dated 07.06.2019, had been subjected to appeal before the CIT(Appeals), then, the right of the assessee to seek rectification u/s 154 before the A.O was confined to only such matter/matters other than that which
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had been considered and decided by the CIT(Appeals). As the issue in the present case, i.e., the entitlement of the assessee for claim of deduction u/s 80P(2)(a)(i) had already been considered and decided by the CIT(Appeals), therefore, the application thereafter filed by the assessee society u/s. 154, dated 02.05.2022 on the said count itself was not maintainable. For the sake of clarity, sub-section (1A) of Section 154 of the Act is culled out as under:
“154 (IA). Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub- section in relation to any matter other than the matter which has been so considered and decided.” (emphasis supplied by us)
Accordingly, the order passed by the A.O. declining the assessee’s request for rectification vide his order u/s. 154 dated 13.05.22 is approved in terms of our aforesaid observations.
In the result, the appeal of the assessee is dismissed in terms of our aforesaid observations.
Order pronounced in open court on 27th day of October, 2023. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; �दनांक / Dated : 27th October, 2023 **#SB
7 Sidharth Co-operative Credit & Thrift Society Limited Vs. ITO-2(1), Bhilai ITA No. 241/RPR/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant. 2. ��यथ� / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G.) 4. The Pr. CIT, Raipur-1 (C.G) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, रायपुर ब�च, रायपुर / DR, ITAT, Raipur Bench, Raipur. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // �नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, रायपुर / ITAT, Raipur.
