2019 (6) TMI 586 - AT - Income Tax

Rectification u/s 154 - AO s action in reopening u/s 153A - on issues settled by IT Settlement Commission order - HELD THAT - Reopening u/s 153A in case of assessee covered u/s 245-I is not provided in the Act. In these circumstances, we fail to understand as to what it debatable in coming to conclusion that AO s action in reopening u/s 153A is illegal and not in accordance law. AO initiates a palpable illegal action and if the assessee doesn t dispute it by way of an appeal the same can by no stretch of imagination be said to be taking the order of AO out of the ambit of a mistake apparent from record being an ex-facie illegal order. Hence, as per the mandate of the Act, once when the issue has been decided by the settlement commission, it is not open to the AO to reopen the assessment and consider the issue again. AO s action is not even justified by the exception in the non-obstante clause as mentioned in section 153A. Hence, the mistake in the order of the AO is apparent and palpable which leads to a conclusion that the AO s order is exfacie legal. Hence in our considered opinion, CIT(A) has clearly erred in dismissing the assessee s appeal by holding that it is upon a debatable issue. Accordingly, since, the AO was not fortified to make an addition, qua section 14A as the matter stood already concluded by IT Settlement Commission order, this assessment order deserved to be cancelled/quashed. Accordingly, we set-aside the order of CIT(A) decide the issue in favour of the assessee.

Summary

Issues:
1. Rejection of application under section 154 of the Income Tax Act by the Assessing Officer.
2. Disallowance of expenses under section 14A r.w. Rule 8D under normal provisions and u/s 115JB.

Issue 1: Rejection of Application under Section 154:
The appellant filed a rectification application under section 154 of the Income Tax Act, challenging the assessment order passed by the Assessing Officer for AY 2005-06. The appellant argued that the order was bad in law as the year was before the Income Tax Settlement Commission (ITSC), which had already passed a conclusive order for AYs 1999-2000 to 2005-06. The Assessing Officer rejected the rectification application, stating that cancellation of the order was not a mistake apparent from the records. The appellant contended that as per section 245-I, matters before the Settlement Commission cannot be reopened under any proceedings under the Act. The appellant cited the Allahabad High Court decision, emphasizing that the assessing officer had no power to make a fresh assessment after the Settlement Commission's order. The appellant also referred to the Supreme Court's decision on rectifiable errors and argued that the Assessing Officer's action was illegal. The Tribunal observed that the Assessing Officer's action in reopening the assessment was not justified, as the issue had been conclusively decided by the Settlement Commission. Consequently, the Tribunal set aside the CIT(A)'s order and decided in favor of the appellant, allowing the appeal.

Issue 2: Disallowance of Expenses under Section 14A:
The appellant had initially filed the return of income for AY 2005-06, followed by compliance under section 153A after action under section 132. The Assessing Officer disallowed expenses under section 14A during the assessment, which the appellant did not appeal against. Subsequently, the appellant filed rectification applications to cancel the assessment, citing the Settlement Commission's order and section 245-I. The CIT(A) held that the issue was debatable and not a mistake apparent from the record, thus dismissing the appeal. The Tribunal disagreed with the CIT(A)'s decision, emphasizing that once an issue had been decided by the Settlement Commission, the Assessing Officer could not reopen the assessment. The Tribunal found the Assessing Officer's action illegal and not in accordance with the law, as the matter had already been concluded by the Settlement Commission's order. Therefore, the Tribunal set aside the CIT(A)'s order and ruled in favor of the appellant, allowing the appeal.

In conclusion, the Tribunal's judgment addressed the rejection of the application under section 154 and the disallowance of expenses under section 14A. It highlighted the significance of the Settlement Commission's orders, the limitations on the Assessing Officer's authority post such orders, and the legal principles governing rectifiable errors. The Tribunal ultimately sided with the appellant, setting aside the CIT(A)'s order and allowing the appeal on both issues.