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Income Tax Appellate Tribunal, LUCKNOW BENCH “B”, LUCKNOW
Before: SHRI ANADEE NATH MISSHRA & SHRI SUBHASH MALGURIA
PER SUBHASH MALGURIA, J.M.:
These appeals have been filed by the assessee against the orders of the ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 03.01.2024 and 31.10.2023 for the assessment year 2015-16. The assessee has raised the following grounds of appeal in ITA No.386/LKW/2023:
(1) The Ld. C. I. T. (A) erred on facts and in law in passing order u/s 250 of I. T. Act dated 03.01.2023 without deciding the issues pending in appeal and further the issue decided in the Appellate Order does not pertain to the issue against which appeal was filed before Ld. C.Ι.Τ.(A) and thus the Order is bad in law and liable to be cancelled. (2) The Ld. C.I.T. (A) erred on facts and in law in not considering that the issue pending in the Quantum Appeal filed against Order of Ld. A.CIT, Range-I, Lucknow dated
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12.12.2017 was with respect to disallowance of Commission Expenses of Rs.1,24,30,890/- and on the contrary the Ld. C.I.T. (A) decided the issue of levy of Late Fee u/s 234E of 1. T. Act which was pertaining to the Separate Appeal of TDS of same Assessment Year. (3) The Ld. C.I.T. (A) erred in not considering that a Separate Appeal of Levy of Late Fee under section 234E of 1. T. Act for F. Y. 2014-15 in Form 2402 was also filed on 16.10.2021 against Order dated 23.09.2021 of ACIT-TDS, CPC and Ld. C.I.T. (A) decided the issue of TDS in the Quantum Appeal and thereby closed the quantum appeal proceedings without deciding the quantum issue. WITHOUT PREJUDICE TO ABOVE (4) The Ld. A. O. erred on facts and in law in disallowing Commission Expenses of Rs.1,24,30,890/- debited in the Profit and Loss Account without considering that the details of Commission Expenses as well as genuineness of expenditure in the context of business was duly explained before the Lower Authorities.
There is delay in filing of this appeal and the assessee has filed application for condonation of delay. The ld. D.R. has no objection to the prayer made by the assessee for condonation of delay. Accordingly, we condone the delay and admit this appeal for hearing.
The brief facts of the case are that the assessee- company e-filed its return of income on 30.09.2015, declaring a total income of Rs.24,61,560/-. The case of the assessee was selected for scrutiny under CASS and the assessment was completed under section 143(3) of the Act by the ACIT, Range-1, Lucknow, vide order dated 12.12.2017 by making an addition of Rs.1,24,30,890/- under section 37 of the Act.
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Aggrieved, the assessee preferred an appeal before the ld. CIT(A), NFAC, who dismissed the appeal of the assessee vide impugned order dated 03.01.2023. 5. Before us, the ld. counsel for the assessee has submitted that the assessee has filed the appeal before the ld. CIT(A), challenging the disallowance of Rs.1,24,30,890/- made by the ACIT, Range-1, Lucknow vide order dated 12.12.2017 passed under section 143(3) of the Act. In the notice issued by the office of the ld. CIT(A), NFAC dated 22.10.2021 under section 250 of the Act, the reference of order details, against which appeal has been filed by the assessee, are given as dated 12.12.2017 passed under section 143(3) of the Act by the ACIT-1, Lucknow, whereas while disposing of the appeal, he has dealt with altogether a difference issue decided by the Assessing Officer, CPC-TDS, vide order dated 23.09.2021 in assessee’s own case on an another issue. Against the impugned order of the ld. CIT(A), NFAC dated 3.1.2023, the assessee moved an application under section 154 of the Act, requesting him to rectify the mistake apparent in the order of the ld. CIT(A), NFAC, which has been rejected by the ld. CIT(A), vide order dated 22.10.2023, stating therein that there are no powers available with the ld. CIT(A) under section 154 of the Act to cancel the order. The ld. counsel for the assessee has prayed that in the interest of justice, the order of the ld. CIT(A) be set aside and the matter be restored to his file for deciding the issue raised by the assessee against the order dated 12.12.2017 passed by the ACIT, Range-1, Lucknow under section 143(3) of the Act. The ld. D.R. has no objection to the prayer made by the ld. counsel for the assessee. 6. We have heard both the parties and perused the material available on record. From a perusal of the notice issued
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by the office of the ld. CIT(A), NFAC dated 22.10.2021 (placed at 5 & 6 of the paper book), it is noticed that the opening paragraph clearly states that the appeal preferred by the assessee is against the order dated 12.12.2017 passed by the ACIT-1, Lucknow under section 143(3) of the Act. For the sake of ready reference, the scanned copy of the Notice dated 22.10.2021 issued under section 250 of the Act is reproduced below:
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However, while disposing of the appeal filed by the assessee against the order dated 12.12.2017 passed by the ACIT, Range-1, Lucknow under section 143(3) of the Act, challenging the disallowance of Rs.1,24,30,390/-, the ld. CIT(A) has dealt with the issue relating to Late Fee under section 234E of the Act levied by the Assessing Officer, CPC-TDS vide order dated 2.9.2021 passed under section 154 r.w.s. 200A of the Act. Since the ld. CIT(A) has dealt with altogether a different issue than what has been raised by the assessee before him, there is a mistake crept in the order of the ld. CIT(A). We, therefore, in the interest of justice, set aside the impugned order of the ld. CIT(A) dated 3.1.2023 and restore the matter to his file with a direction to decide the issue raised by the assessee relating to disallowance of Rs.1,24,30,390/-, made by the ACIT, Range-1, Lucknow vide order passed under section 143(3) of the Act, on affording due and adequate opportunity of hearing to the assessee. 8. In ITA No.387/LKW/2023, the assessee has challenged the order dated 31.10.2023 passed by the ld. CIT(A) under section 154 r.w.s 250 of the Act, dismissing the application of the assessee under section 154 of the Act. Since we have set aside the impugned order dated 3.1.2023 of the ld. CIT(A) and restored the matter relating to disallowance of Rs.1,23,30,390/- to his file for deciding the issue on affording due and adequate opportunity of hearing to the assessee, order dated 31.10.2023 of the ld. CIT(A) passed under section 154 r.w.s 250 of the Act has no leg to stand on. Therefore, the appeal filed by the assessee against the order dated 31.10.2023 of the ld. CIT(A) passed under section 154 r.w.s 250 of the Act has become infructuous and the same is dismissed as such.
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In the result, the appeal of the assessee in ITA No.386/LKW/2023 is allowed for statistical purposes and the appeal in ITA No.387/LKW/2023 is dismissed. Order pronounced in the open Court on 16/07/2024.
Sd/- Sd/- [ANADEE NATH MISSHRA] [SUBHASH MALGURIA] ACCOUNTANT MEMBER JUDICIAL MEMBER
DATED:16/07/2024 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR By order Assistant Registrar