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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER
I.T.A. No.04/Asr/2020 Assessment Year: 2006-07
Jammu & Kashmir Projects Vs. Asstt. Commissioner of Construction Corporation Ltd. Income Tax Circle-3, Haft Chinar, Srinagar. (J & K) Rajbagh, Srinagar, (J & [PAN: AABCJ2455N] K). (Respondent) (Appellant)
Appellant by None. (Written Submission) Respondent by Smt. Ratinder Kaur, Sr. DR
Date of Hearing 08.12.2022 Date of Pronouncement 20.12.2022
ORDER Per:Anikesh Banerjee, JM:
The instant appeal of the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals)-1,Amritsar, [in brevity the CIT(A)]
bearing appeal No.29/2011-12, date of order 14.03.2019, order passed u/s 250(6) of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2011-12.The impugned
I.T.A. No.04/Asr/2020 2 Assessment Year: 2006-07
order was emanated from the order of the ld. Asstt. Commissioner of Income Tax,
Circle-3, Srinagar,(in brevity the AO) order passed u/s 154/250 (6)of the Act, date
of order 08.06.2011.
The assessee took the following grounds which read as under: “1. On the facts and circumstances, the ld. Commissioner of Appeals was not right in upholding the AO’s action of denying the rectification under section 154 and to allow a claim of Rs.63,72,588/- made by the assessee in the revised return.”
Assessee has filed an application for condonation of delay of 199 days
wherein, assessee has stated that the aftermath of abrogation of special
constitutional status of the erstwhile J & K, resulted huge delay in filing of appeal.
We find that the delay in filing the appeal has a reasonable cause. The ld. CIT-DR
has not made any strong objection for condonation of delay. Therefore, the delay
of 199 days is condoned.
Tersely, we advert the fact of the case. The assessee has filed the return of
income u/s 139 on dated 01.12.2006 for A.Y.2006-07. Later on, revised return was
filed on 17.03.2008 in which the appellant had claimed expenses/loss on account
I.T.A. No.04/Asr/2020 3 Assessment Year: 2006-07
of brick and tile factory, the assessment was completed by the ld. AO without
taking in cognizance of the revised return &had not allowed the loss of the said
business amount of Rs.63,72,588/-. The appellant had filed application u/s 154 of
the Act before the AO which was duly rejected by the Authority. The claim of the
assessee was that to accept the loss incurred in the factory amount of
Rs.63,72,588/- which was claimed in revised return. During process of rectification
u/s 154/250(6) of the Act, the ld. AO rejected the claim of the assessee. Being
dissatisfied, the assessee filed an appeal before the ld. CIT(A) by challenging the
order of rectificationu/s 154/250(6) of ld. AO. The ld. CIT(A) upheld the order of
the ld. AO and did not allow the loss adjustment with the total income of the
assessee. Being aggrieved, assessee filed an appeal before us.
When the appeal was called for hearing, no one appeared on behalf of
assessee to represent his case. The assessee filed a letter and requested to dispose
of the matter on the basis of the written submission available in the record. we proceed to dispose the appeal ex-parte qua after hearing the learned DR and on the
basis of material available on the record
I.T.A. No.04/Asr/2020 4 Assessment Year: 2006-07
We heard the rival submission and considered the documents available in the
record and also considered the order of both the revenue authorities. The ld. Sr. DR
first relied on the order of ld. CIT(A) in page no. 3 which is extracted as below: “Decision- As stated in the impugned order, regarding the expense in respect of brick and tile factory the CIT(A) has given his finding and no relief has been granted to the assessee on this issue. Therefore in the light of the order of the CIT(A), no relief was granted to the assessee on this issue. In the statement of facts filed with form 35 that the appellant filed return of income for AY 2006-07 on 1.12.2006. Later on revised return was filed on 7.3.2008 in which the appellant claimed expenses/loss on account of brick and tile factory. The assessment was completed by the AO without taking into cognizance of the revised return and did not allow the loss of said factory. The appellant had then moved application u/s 154 of the act before the AO which was rejected. However, considering that the expense in respect of brick and tile factory had been considered but the CIT(A), Jammu and he has given a finding in his order of not allowing relief to the assessee on this issue, therefore there is no merit in the application u/s 154 of the act and the same is dismissed.”
I.T.A. No.04/Asr/2020 5 Assessment Year: 2006-07
The assessee had filed a return in original on dated 01.12.2006. The next
revised return was on 17.03.2008. The assessment was completed on basis of the
original return. The ld. AO had not taken cognizance of the revised return. The
assessee did not claim the loss in the original return filed before the revenue. So,
the ld. AO is only bound to allow the claim which is claimed in the original return.
Accordingly, after the appeal, the ld. AO process the rectification order u/s
154/250(6) of the Act. The claim of deduction under loss is not under the purview
of the original return. The said loss is not binding with original return so there is no
rectification apparent from the record u/s 154. Section 154 is binding on the
mistake which apparent from the record. The assessee was unable to bring any
order or direction that the revised was accepted with original return. The power of
Section 154 is very limited in this case. Hon'ble Supreme Court in case of
Krishnaswamy S. Pd. v. UOI [2006] 281 ITR 305/151 Taxman 286 (SC) held that the maximum 'actus curiae neminemgravabit', is founded upon justice and
good sense which serves a safe and certain guide for the administration of law. An
unintentional mistake of the authority which may prejudice the cause of any party
I.T.A. No.04/Asr/2020 6 Assessment Year: 2006-07
must and alone could be rectified. We find no infirmity in the order of the ld.
CIT(A). The ground of appeal of the assessee is accordingly dismissed. In the result, the appeal of the assessee bearing ITA No. 04/Asr/2020 is 7.
dismissed.
Order pronounced in the open court on 20.12.2022
Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member
AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T.