TaxTMI 
TaxTMI 
2025 (11) TMI 1657
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....the matter and in view of the facts and in the circumstances it may be held accordingly. 2. Without prejudice to Ground No. 1 above, Ld. CIT(A) erred in not appreciating the fact that order u/s 143(1) is distinct and separate from the order u/s 143(3) read with sec. 144C(3) read with sec. 144B and as such the appeal in respect of order u/s 143(1) was required to be adjudicated separately and as such Ld. CIT(A) erred in not adjudicating the same and in view of the facts and in the circumstances it may be held accordingly. 3. Without prejudice to Grounds No. 1 & 2 above, Ld. CIT(A) erred in not appreciating the fact that there was no demand u/s 115-0 and consequently no interest u/s 115P was levied in the order u/s 143(3) read with sec. 144C(3) read with sec. 144B and hence the action of AO in charging interest u/s 115P in the order u/s 143(1) which was further adjusted with the refund eligible to the appellant was unjustified and illegal and as such action of Ld. CIT(A) in not adjudicating the same is bad in law and it may be held accordingly. 4. Without prejudice to Grounds No. 1, 2 & 3 above, Ld. CIT(A) erred in not appreciating the fact that action of A....
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....rging interest u/s. 115P at Rs. 2,44,84,365/- and in view of the same he may kindly be directed to delete the same. 5. For that in view of the facts and in the circumstances, the AO is unjustified in calculating interest u/s. 244A only upto December 2021 and he may kindly be directed to compute the same upto the date of service of intimation/issue of refund. 6. For that in view of the facts and in the circumstances, the AO is wholly unjustified in raising undue demand of Rs. 11,19,28,525/- by not giving due credit of DDT and charging interest u/s. 115P on such alleged shortfall and in view of the facts and in the circumstances he may kindly be directed to delete the same. 7. For that in view of the facts and in the circumstances, the AO is wholly unjustified in apparently adjusting interest u/s. 115P of Rs. 2,44,84,365/- against refund of Rs. 20,86,39,837/- calculated by him, without issuing any intimation u/s. 245 of the Act and in view of the same, such impugned adjustment may kindly be deleted. 8. For that in view of the facts and in the circumstances, the AO is unjustified in not releasing the refund of Rs. 18,41,55,480/- computed by him to b....
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....t appeal has been preferred, does not survive under the statue, the appeal against such order is also not maintainable. Therefore, the undersigned is of the considered opinion that this appeal is not maintainable and therefore the same is being dismissed without going into merits of the case. 6. In the result, the present appeal is considered as infructuous and hence dismissed." 5. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal. Rival submissions were considered and the details filed have been examined. The Ld. AR drew our attention to the fact that in the intimation u/s 143(1) of the Act, interest u/s 115P of the Act for non-payment of dividend distribution tax was charged, which was not the issue in scrutiny assessment and against which the appeal was filed. It was submitted that the appeal against the intimation u/s 143(1) of the Act was maintainable as the order had not merged in the order of the Ld. CIT(A). 6. We have considered the submissions made. It is to be examined whether the appeal against the intimation under section 143(1) was separately maintainable or not before the Ld. CIT(A) and whether the intimat....
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..../2024 ITAT Delhi Bench 'G' order dated 22.05.2024 relied upon by the assessee, though it is mentioned that the intimation order u/s 143(1) merged with the regular assessment passed u/s 143(3) of the Act but the issue was denial of registration under section 12A of the Act and the order is distinguishable on facts as is extracted below: 10. Considered the rival submissions and material placed on record. We observe that the issue raised by the assessee that the order passed u/s 143(1) of the Act, otherwise called as intimation, in which the CPC has denied the benefit claimed u/s 11 of the Act with the observation that the audit report in form 10B was not filed on time. This is fact on record that the assessee has not filed the form 10B along with the return of income due to the fact that it did not had the registration u/s 12A, and the assessee was claiming the benefits under the concept of mutuality. We observe that the assessee has applied for registration before filing the return of income for the current assessment year on 27.03.2019 and subsequently filed the ROI on 30.03.2019. The ROI was processed u/s 143(1) of the Act on 10.11.201 9 and denied the benefit u/s 11 on t....
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....ons, we are also of the view that the findings on allowability u/s 11 is uncalled. Particularly when the issue under consideration is under challenge before another Appellate Authority. 13. The next issue raised by the Ld AR is, the assessee was granted the 12A registration on 5.1.2021 and the notice u/s 143(2) was issued on 22.09.2019. At the time of grant of registration, the assessment was pending and the same was passed only on 8.2.2021. That is subsequent to grant of registration i.e., on 5.1.2021. He submitted that the assessee is eligible to claim exemption u/s 11 for the impugned assessment year also. This is accepted fact on record that the assessee is eligible to claim exemption after the introduction of first proviso to sec. 12A(2) of the Act with the applicable conditions in Finance Act 2018. Since there is no change in the objects and activities in the case of the assessee, there is no doubt that the assessee is eligible to claim the benefit. However, in our view, this issue has to be raised before the FAA in the appeal against regular assessment passed u/s 143(3) of the Act. Since the issue is still under appeal before FAA, this issue can be decided by the FA....
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....10 Taxman 311, the Apex Court opined that where the Legislature intended to make a distinction as to where there will be no merger, the Legislature has made express provision therefor. There is no provision in section 143 that notwithstanding an order having been passed under section 143(3), an order passed under section 143(1) shall continue to subsist. [Para 15] Section 154(1A) provides that the rectification has to remain restricted to the matter which has not been considered and decided either in appeal or revision. There is no reason why the same restriction would not apply to a summary assessment and regular assessment particularly when the appropriation to contingency reserve was allowed under section 143(1)(a) but disallowed under section 143(3). [Para 16] It followed that the effective and operative order was the one under section 143(3) and, therefore, the question of seeking rectification of the order under section 143(1)(a) could never arise. [Para 18] For the aforesaid reasons, the notices under section 154 seeking to rectify the intimation under section 143(1)(a) for the assessment years 1990-91, 1992-93, 1993-94 and 1994-95 were to be quash....
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....ed to exercise its discretion so as to allow the appeal being filed. (v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of article 141. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, Tribunal or authority below has merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in the subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of the Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be of rev....