2022 (11) TMI 467 - AT - Income Tax

Rectification u/s 154 - Addition u/s 54 - sale of property - Mistake on the basis of Audit Objections - whether addition was made after giving proper opportunity of being heard vide notice u/s 154/155 to the assessee - HELD THAT - DR did not controvert the arguments of assessee that considering the present set of fact the ld. AO did not bring anything in the notice issued to him so as to demonstrate that in fact there is a mistake apparent on record. The claim of the assessee is already considered which is based on the submission on merits in the scrutiny assessment and order has been passed which is based on the evidences and submission made by the assessee. Merely there is an observation of the revenue audit party it is not a mistake apparent on record. The ld. AO is in error of reviewing his own order under section 154 of the Act. Considering the facts placed on record the bench noted that the issue noted by the ld. AO is not a mistake apparent on record and is not subjected to revision under the guise of provision of section 154 of the Act and therefore, order passed under section 154 of the Act lacks jurisdiction as ld. AO did not demonstrate as to what is the mistake apparent on record and the debatable or change of opinion is not subject matter of the provision of section 154 of the Act, as the law allows the mistake apparent on record be rectified which is expressly not demonstrated before us and see that there exist no mistake which is apparent on record. The law duly empowers the revenue to invoke other provision to consider the audit objection but the same is not permitted under the provision of section 154 of the Act as it done by the AO. In view of the above, we do not find any infirmity in the order of the ld. CIT(A)/NFAC and accordingly decline to interfere. Hence the ground of the appeal of the revenue is dismissed.

Issues Involved:
1. Whether the rectification of the assessment order under Section 154 of the Income Tax Act, 1961, was valid.
2. Whether the Assessing Officer provided a reasonable opportunity of being heard to the assessee before rectifying the assessment order.
3. Whether the rectification of the assessment order amounted to a review of the original assessment.

Issue-wise Analysis:

1. Validity of Rectification under Section 154:
The primary issue was whether the rectification of the assessment order under Section 154 of the Income Tax Act, 1961, was valid. The CIT(A) held that the disallowance made by the Assessing Officer (AO) was not amenable to rectification proceedings under Section 154. The CIT(A) noted that the AO had initially accepted the assessee's returned income and allowed the exemption claimed under Section 54 in totality. However, the AO later disallowed a portion of the exemption without providing any reason in the rectification order. The CIT(A) concluded that the disallowance did not appear to be a "mistake apparent from the record" and thus was not subject to rectification under Section 154. The tribunal upheld this view, noting that the AO did not demonstrate any apparent mistake on record, thus invalidating the rectification order.

2. Opportunity of Being Heard:
The second issue was whether the AO provided a reasonable opportunity of being heard to the assessee before rectifying the assessment order. The CIT(A) found that the AO did not issue any notice or provide an opportunity to the appellant before rectifying the assessment, which is against the principle of natural justice and violative of Section 154(3) of the Act. The tribunal agreed with this finding, noting that only one notice was issued, and even that notice did not mention the mistake apparent on record, effectively denying the assessee a reasonable opportunity to present their case.

3. Review of Original Assessment:
The third issue was whether the rectification of the assessment order amounted to a review of the original assessment. The assessee argued that the AO was attempting to review his own order under the guise of rectification, which is not permissible under Section 154. The tribunal noted that the AO had already considered and decided the issue during the original assessment proceedings under Section 143(3) after examining all relevant details and submissions. The tribunal concluded that the AO's action was an attempt to review the original assessment, which is beyond the scope of Section 154, as it only allows for the rectification of mistakes apparent on record.

Additional Grounds Raised by Assessee:
The assessee also raised an additional ground under Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963, challenging the validity of the rectification proceedings on the basis that the issue was not amenable to rectification under Section 154. The tribunal admitted this additional ground, noting that it was a legal ground with all facts already on record and had a direct bearing on the outcome of the appeal. The tribunal found that the AO's action lacked proper reasoning and was arbitrary, as there is no concept of proportionate deduction in law for mixed-use properties under Sections 54 or 54F.

Conclusion:
The tribunal upheld the CIT(A)'s order, quashing the rectification order under Section 154 on both technical and substantive grounds. The tribunal found that the AO did not provide a reasonable opportunity of being heard to the assessee and that the rectification amounted to an impermissible review of the original assessment. The tribunal also allowed the additional ground raised by the assessee, reinforcing that the rectification order lacked jurisdiction and was not sustainable under the law. The appeal filed by the revenue was dismissed.

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