Amar Avinash Associates, Mumbai vs Assessee

आयकर अपील य अ धकरण, 'ए' खंडपीठ मुंबई INCOME TAX APPELLATE TRIBUNAL,MUMBAI "A" BENCH सव ी आई पी बंसल , या यक सद य एवं राजे , लेखा सद य Before S/Sh. I P Bansal,Judicial Member & Rajendra,Accountant Member आयकर अपील सं/.ITA No.1630/Mum/2013, नधारण वष/Assessment Year-2003-04 Amar Avinash Associates DCIT, Central Circle-42 5/54, Mahesh Niwas, L.T. Road Mumbai.

No.3, Goregaon (W),Mumbai-62. Vs PAN: AADFA 1628 D (अपीलाथ /Appellant) ( यथ / Respondent) नधा रती ओर से/Assessee by : Shri Prasad Bapat राज व क ओर से/ Revenue by :Shri Asghar Zain सुनवाई क तार ख/ Date of Hearing : 01 -06-2015 घोषणा क तार ख / Date of Pronouncement : 01-06-2015 आयकर अ ध नयम,1961 क धारा 254(1)के अ तगत आदे श Order u/s.254(1)of the Inco me-tax Act,1961(Act) लेखा सद य राजे के अनुसार PER RAJENDRA, AM-

Challenging the order dated 26/12/2012 of CIT(A)-18, Mumbai,the assessee has raised the following Grounds of appeal:-

"Being aggrieved by an order passed by the Commissioner of Income-tax (Appeals) - 18, Mumbai U/Sec. 250 dated 26.12.2012, your appellant submits the following 'Ground of Appeal' for your sympathetic consideration.

1. On the facts and circumstances of the case and in law, the learned Commissioner of Income tax (Appeals)-18, Mumbai erred in ignoring the provisions of Sec 246A( 1)( c) and stating that the assessee can not file any appeal against the rejection of rectification application by AO.

2. Without prejudice to the above, on the facts and circumstances of the case and in law, the learned Commissioner of Income tax (Appeals )-18, Mumbai erred in confirming action of Assessing Officer of not allowing interest U/s. 244A on refund of Rs.9,25,902/-. On the facts and circumstances of the case and in law, the learned Commissioner of Income tax (Appeals )-18, Mumbai erred in not appreciating that as per scheme of section 244A(2) the' Aa' was not authorised to take unilateral & ex-parte decision and hence the order passed by the Aa is bad in law being without jurisdiction.

3. The appellant craves leave to add/ alter/ amend/ withdraw existing ground; raise new ground of appeal at the time of hearing."

The assessee-firm,filed its return of income on 8.2.2006,declaring total income of Rs.25.19 lacs. The Assessing Officer(AO) completed the assessment under section 143(3) r.w.s. 153A of the Act on 29.12.2006 determining the income at Rs.25,19,460/-.

2.A search and seizure action under section 132 of the Act was conducted on 19.11.2004 at the residential premises of Amar H. Manjrekar,by the Investigation Wing, Pune,who is one of the partners of the assessee firm. Incriminating documents/articles of the assessee were found and seized during search and seizure operations. The assessee filed an application u/s. 154 of the Act ITA/1630/Mum/2013,AY.03-04-Amar Avinash Associates

on 7/5/2009 for setting off brought forward business losses.The AO passed the order under section 154 of the Act on 20.3.2009 and allowed the set off of brought forward losses of Rs. 46. 53 lacs.The assessee further filed an application for rectification order dt. 24/3/2009 about grant of refund and reducing interest under section 234C of the Act.Vide his order dt. 29/6/2009, the AO refused to pass rectification order as prayed by the assessee .

3.Aggrieved by the order of the AO, assessee preferred an appeal before the First Appellate Authority (FAA). Before him,it was stated that refund of Rs.9.25 lacs was due to the assessee on which interest under section 244A was not granted, that it had filed rectification application for granting of interest under said section, that the AO denied the same without examining anything about the delay and mentioning that taxes were paid as per returned income, that there was no delay in issuing refund on account of any lapses from the assessee's side, that the AO had not granted opportunity of hearing under section 244A(2) of the Act, that his ex-parte decision was not as per provisions of the Act. The FAA during the appellate proceedings asked the assessee to explain as to whether any appeal could be filed against the rejection of the rectification application.As per the FAA,the assessee did not file any reply in that regard. Referring to the provisions of the Sec.246A of the Act, the FAA held that the assessee could file appeal under the different sections of the Act, hat there was no power with the FAA to deal with appeal filed by the assessee,that the assessee could not file appeal against rejection of application by AO. Treating the appeal filed by the assessee as infructuous,he dismissed it.

4.Before us,the Authorised Representative(AR) submitted that the FAA had ignored the provisions of s.246A(1)(c) of the Act, that the assessee was entitled to file appeal against the rejection of rectification application,that the FAA had confirmed the action of the AO of not allowing interest under section 244A on refund on Rs.9.25 lacs.The Departmental Representative (DR)supported the order of FAA.

5.We have heard the rival submissions and perused the material before us. We find that the provisions of s.246A(1)(c) clearly stipulate that an appeal can be filed against rejection of rectification application filed under section 154 of the Act. Therefore, in the interest of justice, we are restoring back the matter to the file of the FAA for fresh adjudication. He would decide the appeal on merits after providing reasonable opportunity of hearing to the assessee . Effective ground of appeal, filed by the assessee is allowed in its favour in part.

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As a result, appeal filed by the assessee stands partly allowed.

फलतः नधा रती अ धकार वारा दा खल क गई अपील मंजूर क जाती है .

Order pronounced in the open court on 1st,June,2015.

आदे श क घोषणा खुले यायालय म दनांक 1 जन ू ,2015 को क गई ।

Sd/- Sd/-

(आई पी बंसल/I P Bansal) (राजे / RAJENDRA)

या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मंब ु ई/Mumbai, दनांक/Date: 01. 06. 2015 व. न.स. Jv.Sr.PS. आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1.Appellant /अपीलाथ 2. Respondent / यथ

3.The concerned CIT(A)/संब ध अपील य आयकर आयु त, 4.The concerned CIT /संब ध आयकर आयु त

5.DR A Bench, ITAT, Mumbai / वभागीय त न ध, ए खंडपीठ,आ.अ. याया.मुंबई

6.Guard File/गाड फाईल स या पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील य अ धकरण, मंब ु ई /ITAT, Mumbai.

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