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TaxTMI 
TaxTMI 
TaxTMI 
2013 (9) TMI 797
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.... the A.O. on 05.05.2009 to give effect to the tribunal order dated 17.04.2009 but the issue involved is common in both these appeals of these two different assessees for the same assessment year. The appeal field by the assessee against the appeal effect order passed by the A.O. is delayed and hence, we first decide the appeal filed by the assessee against order passed by the A.O. under Section 154 order passed by the A.O. i.e. I.T.A.No. 865/Ahd/2010 in the case of Synrefra Engineering & Construction Ltd and 867/Ahd/2010 in the case of M/s. Sarjan Realities Ltd. Both sides agreed that the issue involved in both these cases is identical and hence, the issue can be decided in any one of the cases and the order in that case can be followed in the second case. Hence, we reproduce the grounds of appeal raised by the assessee M/s. Synrefra Engineering & Construction Ltd. in I.T.A.No. 865/Ahd/2010 which are as under: "1 The ld. CIT(A) has erred in law and on the facts of the case in holding that the impugned appeal against order u/s 154 of the Act is not maintainable at all and he further erred in dismissing the appeal of the appellant in limine. 2 The ld. CIT(....
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....rusal of case records reveal that a survey was carried out u/s. 133A by the Investigation Wing, Surat, on 5-4-06 at the business premises of Suzlon group of companies, including the premises of the present assessee, during which, the Suzlon group made a disclosure of Rs. 51 Cr., out of which an amount of Rs. 7 Cr. pertained to the present assessee for A.Y. 2006-07. The assessee e-filed its return of income on 27-12-06 declaring a total income of Rs. 32.38 Cr., inclusive of the amount of the disclosure. Later on, the assessee filed a letter dt: 28-12-06 requesting the A.O. to adjust the disclosed amount of Rs. 7 Cr. against disallowance of expenses, deductions etc. to be made in the asst. The asst. was finalised determining total income of Rs. 32.38 Cr. without any additions/disallowances. The assessee preferred appeal before the CIT (A) claiming that asst. should have been finalised at the returned income minus the amount disclosed by it, which was dismissed by the CIT (A) in respect of telescoping of disallowances against the disclosed amount. On further appeal to the ITAT, the Hon. ITAT directed the A.O. to allow the claim of the assessee and after appeal effect to ....
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....mputation of income filed along with a copy of paper return revealed that the disclosed income was not credited to the P&L A/c. but was added to the total income in the computation of income. It can therefore be safely concluded that the assessee included the disclosed income in its total income to avoid penalty u/as. 271(1)(c) should any additions be made on the basis of evidence gathered during survey. While processing the e-return u/s. 143(1) no adjustments, as requested by the assessee in its letter dt: 28-12-2009, could have been made as the same are not allowed u/s. 143(1). It would have been different had the assessee not included the disclosed income in its total income or had filed a revised return of income. It has wrongly been contended that the correct income could not be shown in the e-return. It has also been wrongly contended that Circular 549 does not apply to the' assessee's case. The third example in the said Circular illustrates a case' where refund arises out an appellate order. Thus, the very earliest point at which the adjustments could have been made was at the time of passing of the order u/s. 143(3) on 27-03-08. However, the A.O.....
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....e date of assessment order passed by the A.O. u/s 143(3) on 27.03.2008 to the date of granting the refund i.e. 20.05.2009 and he rejected the claim of the assessee for the period form 01.04.2006 to 26.03.2008 and hence, it cannot be said that there is no apparent mistake in the order passed by the A.O. which can be rectified u/s 154 of the Act. Regarding this objection of Ld. CIT(A) that the order passed by CIT u/s 244A(2) is final and CIT(A) has no jurisdiction against this direction of CIT, it was submitted that appeal of the assessee is not against the direction of CIT u/s 244A(2) but the appeal of the assessee is against the order passed by the A.O. u/s 154. Ld. D.R. supported the orders of authorities below. He has submitted that as per the provisions of Section 244A(2), the decision of Chief CIT or CIT shall be final and hence, the same cannot be disturbed by the appellate authority being the CIT(A) or the tribunal and the assessee has remedy to file writ before Hon'ble High Court and this matter cannot be taken before the tribunal by way of filing appeal. 7. We have considered the rival submissions, perused the material on record and have gone through the orders of authorit....
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.... the question is whether the present appeal is against the order passed by CIT u/s 244A(2) or against the order passed by the A.O. u/s 154. In our considered opinion, the present appeal is arising out of the order passed by the A.O. u/s 154 and it is not against the order passed by CIT u/s 244A(2). Moreover, in our considered opinion, the finality of the order passed by Chief CIT or CIT u/s 244A(2) is qua the A.O. i.e. the departmental authorities who has referred the matter to the Chief CIT or CIT but it cannot be taken to be final against the assessee because there is no provision u/s 244A(2) for granting hearing to the assessee before taking a decision u/s 244A(2) and, therefore, any order passed by Chief CIT or CIT u/s 244A(2) cannot be taken to be final qua the assessee because no opportunity of hearing is allowed to the assessee before passing this order by the Chief CIT or CIT and, therefore, the principles of natural justice are not followed and hence, the finality of this decision of Chief CIT or CIT is restricted to qua the A.O. and departmental authority who has referred the matter to chief CIT or CIT and it cannot be accepted as final qua the assessee. In the present ca....
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....the copies of impounded materials so that assessee can take proper reference and cognizance of the said materials before filing of returns of income. No opportunity was provided or no copies or assess to the seized materials was provided till 28.12.2006. Accordingly, the assessee vie letter dated 28.12.2006, retracted the disclosure and the relevant para of the letter reads as under: "In all humility it is the case of Suzlon Group of companies that all expenses deducted and other claims made by are genuine and admissible at law and therefore, the amount of voluntary disclosure referred to hereinabove has not been specifically identified in reference to any expenses, discrepancies of assets. Accordingly, if during the course of assessment proceedings or appellate /revision proceedings if addition is made to the returned income without taking into account the disclosure of assessee, either due to disallowance of expenses or deduction or otherwise then to the extent of disclosure made by the assessee, the addition be telescoped against the disclosure and no separate addition be made again. Further the tax remaining in addition to surplus amount of disclo....
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....008 i.e. for 23 months on refund of Rs.235.62 lacs. The relevant aspect on which the allowability of interest is denied is this that as to whether there was any delay attributable to the assessee in granting refund. In our considered opinion, since the retraction was made by the assessee immediately after filing the return of income and during the course of assessment proceeding also, it cannot be said that the delay in granting refund is attributable to the assessee in the present case and, therefore, interest is allowable to the assessee for this period also i.e. from 01.04.2006 to 29.02.2008. We order accordingly and direct the A.O. to grant interest u/s 244A for this period also. 15. In the result, the appeal of the assessee stands allowed. 16. The 2nd appeal of this assessee being I.T.A.No. 866/Ahd/2010 which is arising out of the appeal effect order passed by the A.O. has become infructuous in view of our decision in I.T.A.No. 865/Ahd/2010 and hence, the same is dismissed as infructuous. 17. Now, we take up the appeal of the second assessee i.e. M/s. Sarjan Realities Ltd. in I.T.A.No. 867/Ahd/2010. It was agreed by both the sides that the issue involved and facts in this c....