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Income Tax Appellate Tribunal, DELHI ‘B’ BENCH,
Before: SHRI N.K. BILLAIYA, & SHRI CHALLA NAGENDRA PRASAD
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:-
The above captioned two separate appeals by the assessee are preferred against 2 separate orders dated 04.11.2022 and 28.10.2022 by the NFAC, Delhi pertaining to Assessment Years 2017-18 and 2018-19.
Since common grievance is involved in the captioned appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity.
Briefly stated, the facts of the case are that for A.Y 2017-18, return was filed on 31.03.2018 and for A.Y 2018-19, return was filed on 30.11.2018. Return for A.Y 2017-18 was processed and intimation u/s 143(1) of the Act is dated 29.03.2019 and for A.Y 2018-19, intimation is dated 02.03.2020. In both the years, certain adjustments were made to the returned income.
Challenge before us is, no adjustment can be made unless an intimation is given to the assessee, i.e. no adjustment can be made without notice.
It would be pertinent to refer to the provisions of section 143(1) of the Act as they stood at the relevant point of time, which read as under:
“1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:—
(a) the total income or loss shall be computed after making the following adjustments, namely:— xxxxxxx xxxxxxx
Provided that no such adjustments shall be made unless an intimation is given to the assessee of such adjustments either in writing or in electronic mode:
Provided further that the response received from the assessee, if any, shall be considered before making any adjustment, and in a case where no response is received within thirty days of the issue of such intimation, such adjustments shall be made:]
There is no ambiguity in the 1st Proviso mentioned hereinabove. 6.
The mandate is very specific that no such adjustment shall be made unless an intimation is given to the assessee of such adjustments and the officer has to wait for 30 days before proceeding further, as mentioned in the proviso hereinabove.
Facts on record show that there is no evidence of such intimation issued before framing the order u/s 143(1) of the Act though the NFAC/CIT(A) has confirmed the two adjustments and have directed the Assessing Officer to reverify in respect of other adjustments but there is no mention of intimation prior to making the adjustments. Since this part goes to the root of the matter, we deem it fit to restore the issue to the file of the Assessing Officer/CPC.
The Assessing Officer/CPC is directed to verify whether any intimation was issued either in writing or in electronic mode prior to making the impugned adjustments. If yes, then furnish the details and if no such intimation was issued, then the impugned intimation u/s 143(1) of the Act is treated as bad in law and deserves to be quashed. With these directions, the impugned appeals are allowed for statistical purposes.
In the result, the appeals of the assessee in ITA Nos.
3019/DEL/2022 and 3020/DEL/2022 are allowed for statistical purposes.
The order is pronounced in the open court on 18.10.2023.