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TMI Blog2021 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... nged the entire disallowance of prior period expenditure which has not been disposed off; and secondly, it has also been prayed before us that liberty should be given to file the appeal before the first appellate authority against the first rectification order passed u/s.154 dated 19.02.2015. These pleas have been taken only by way of alternative contention, otherwise the main contention of the ld. counsel is that the first rectification order has been merged with the second rectification order, and therefore, all these issues arising in the first rectification order are open and can be challenged by the assessee. However, we are unable to accept this contention of the ld. counsel, because the right course of remedy would have been that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing grounds: 1. That on the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeals) [ CIT(A) ] erred in dismissing in limine, the appeal filed by the appellant against the order dated 28.07.2015 read along with order dated 19.02.2015, both passed under section 154 of the Income Tax Act, 1961 ( the Act ). 1.1 That the CIT(A) erred in dismissing the appeal holding that the grounds of appeal raised by the appellant did not pertain to/arise from the rectification order dated 28.07.2015, which was under challenge, that too, without affording any opportunity of being heard to the appellant. 1.2 That the CIT(A) erred on facts and in law in not appreciating that rectification order dated 19.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to tax, prior period income of ₹ 21.75 crores, which was net of the prior period income of ₹ 50.39 crore and prior period expenditure of ₹ 28.64 crore. This amount of ₹ 28.64 crores was disallowed by Assessing Officer vide order dated 09.02.2015. Thereafter, assessee has filed an application dated 04.03.2015 pointing out that amount of disallowance of ₹ 28,64,00,000/- includes amount of ₹ 2,87,61,489/- which was the amount of prior period depreciation disallowed by the assessee suo motu . Ld. Assessing Officer besides other points has accepted the assessee s contention and he reduced the income of the assessee by an amount of ₹ 2,87,61,489/-. 3. In the appeal before the Ld. CIT (A), the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. He submitted that if the appeal was defective, then the ld. CIT (A) should have granted opportunity for removing the defect or otherwise there was any technical defect then notice should have been issued. He submitted that assessee has a right for remedy and right to appeal if there is a wrong levy of tax or disallowance have been made which otherwise could not have been made on the facts and in law and there was a clear cut mistake apparent from the record, therefore, this issue of disallowance of ₹ 25,76,38,511/- should be decided in the present proceedings itself. 5. On the other hand, ld. DR submitted that here in this case the assessee had a grievance on account of disallowance of prior paid expenditure made in the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.07.2015, no disallowance has been made; and in fact whatever relief was sought by the assessee in its application has been allowed. Ld. counsel has also informed that assessee has even filed second set of rectification application before the Assessing Officer against order dated 09.02.2015, wherein it has challenged the entire disallowance of prior period expenditure which has not been disposed off; and secondly, it has also been prayed before us that liberty should be given to file the appeal before the first appellate authority against the first rectification order passed u/s.154 dated 19.02.2015. These pleas have been taken only by way of alternative contention, otherwise the main contention of the ld. counsel is that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X
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