2022 (5) TMI 608

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....rn of income on 19.10.2018 declaring total income at Rs. 26,03,941/-. The return of income was processed under section 143(1) of the Income Tax Act, 1961 ("the Act" for short) and on 19.10.2019 by the Centralized Processing Centre and determined total income at Rs. 28,16,680/- thereby making an addition of Rs. 2,10,743/- on the returned income. Aggrieved against the intimation, the assessee filed an appeal before the CIT(A)-9, Ahmedabad on 7.12.2019 and the same was migrated to NFAC as per the CBDT notification The ld. NFAC has given two opportunities to the assessee to hear the case by e-proceedings. As there was no response from the assessee, the appeal was decided based on the materials available on record. The only issue that is arising....

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....(a). Further, there are divergent views are being expressed by various High Courts on late payment of PF & ESI. As against the decision in the case of Gujarat State Road Transport Corporation (supra), SLP filed by the assessee before the Hon'ble Apex Court is pending, therefore, the ld. NFAC is totally not correct in upholding the additions made in the assessment framed under section 143(1) of the Act, wherein debatable issue cannot be considered. 5. Per contra, the Ld. DR appeared for the Revenue supported the order of the lower authorities and pleaded that jurisdictional High Court have repeatedly held that late payment of PF and ESIC contribution certainly requires disallowance under section 36(1)(va) of the Act and pleaded that t....

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....9; (iv) disallowance of expenditure 82[or increase in income] indicated in the audit report but not taken into account in computing the total income in the return; (v) disallowance of deduction claimed under 83 [section 10AA or under any of the provisions of Chapter VI-A under the heading "C.--Deductions in respect of certain incomes", if] the return is furnished beyond the due date specified under sub-section (1) of section 139; or (vi) addition of income appearing in Form 26AS or Form 16A or Form 16 which has not been included in computing the total income in the return: Provided that no such adjustments shall be made unless an intimation is given to the assessee of such adjustments either in writing or....

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....so, then the second proviso stipulates that if any response is received from the assessee, the same should be considered before making any adjustment or disallowance, and also in a case where NO response is received, then within thirty days of the issue of such intimation, department is free to make such adjustment. 8. On going through the above intimation made under section 143(1), CPC has not followed the above provisos by giving proper opportunity to the assessee to defend its case as per the first proviso to section 143(1)(a). Further, the NFAC order is also silent about the intimation to the assessee. Therefore, we find that intimation issued under section 143(1) dated 19.10.2019 is against first proviso to section 143(1)(a), and th....