2022 (12) TMI 877

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....unt of salary to partners Rs.3,45,419/- and interest of partners Rs.4,69,198/-. 4. Under the facts and circumstances of the case the ld. CIT(A) was not justified while confirming the demand u/s 154 on the sole reason that appeal has not been filed against the order u/s 143(1).'' 2.1 At the outset of the hearing of the case, the Bench noted that there is delay of 15 days in filing the appeal by the assessee for which the assessee filed an affidavit dated 15th Nov. 2022 praying therein as under:- ''2. That the time of filing appeal before the Tribunal was on 12-11-2021 and it was filed online on 10-11-2021 and physical copy was filed on 26-111-2021. However, it has been informed by the Registry that appeal is delayed for 15 days. 3. That due to the continuous ill health issue since 10-11-2021, it could not be possible to file on due date, therefore physical copy was filed before registry on 26-11-2021. Therefore, appeal was delayed by 15 days which was beyond the control of the appellant.'' 2.2 On the other hand, the ld. DR opposed the condonation application of the assessee. 2.3 After hearing both the parties and perusing the materials available o....

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....ans "A mistake apparent from the record must be an obvious and patent mistake and not something which is established by a long-drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent on record". Thus, the order passed by CPC, Bangalore is rectifiable but then the mistake should be apparent from the record. There are a catena of case laws on this aspect, wherein it has been emphasized that mistake must be obvious and patent. Some of them are quoted below: 1. TS Balram, ITO vs. Volkart Bros. Ors. 82 ITR 50(SC) Mistake must be obvious and apparent. - not something which can be established by a long drawn process of reasoning on points on which there may be two opinions. 2 CIT vs Lakshmi Prasad Lahkar [11996) 220 ITR 100 Gauhati)]- Mistake means commission that is not designed and which is obvious and something which has no two opinions or which is debatable. C. Ram Lal Raivadiua Vs. CIT 104 CTR 403 (Calcutta High Court):- A highly debatable question cannot be made amenable to the rectification jurisdiction." 5.1.3 The intimation order was passed u/s. 143(1)....

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....his issue is not admissible and therefore, dismissed. 5.2 Ground No. 4 & 5:- are general in nature and does not require specific adjudication. 6. Thus, the appeal filed by the appellant is Dismissed u/s. 250 read with section 251 of Income tax Act, 1961.'' 3.3 During the course of hearing, the ld. AR prayed that the lower authorities have erred in confirming the addition for which following written submission has been filed by the ld. AR of the assessee. ''The main issue in this case relates to disallowance of Rs 469198.00 as interest to partners and Rs 345419.00 as salary to partners u/s 40b on the basis of tax audit report filed (P.B NO 44) with return of income in which same amount was written in admissible as well as inadmissible due to typing. error informed vide intimation u/s 143(1) against the said intimation. assessee filed rectification u/s 154 clarifying that due to typing error in tax audit report amount was shown in admissible as well inadmissible and auditors certificate was also enclosed (P.B NO 34) along with computation of total income and in return of income (P.B. No. 35-37) and copy of partners' capital account which was rejected....

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....e Act and the AO ignored the admissible amount and taken into consideration the ''inadmissible amount'' and thus made addition. However, immediately after coming to know about this mistake, an application for rectification was moved by the assessee but the said application was dismissed against which the assessee filed the appeal before the ld. CIT(A), NFAC, Delhi who while rejecting the appeal of the assessee concluded that in case the assessee was aggrieved by the addition then in that eventuality, the assessee should have challenged the said order by filing the appeal against the same but instead of filing the appeal the assessee had chosen to file rectification petition u/s 154 of the Act which is not maintainable and thus rejected the appeal filed by the assessee without discussing the merit of the claim raised by the assessee. The Bench has perused copy of capital account of the partners which is placed at PBP 31 to 32, is duly audited by the Auditors and also perused the computation of total income which is placed at PBP 35 to 38. After going through the entire documents placed on record, it is found that there was typing error as has been mentioned by the ld. AR in clause 2....