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TMI Blog2022 (7) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as delayed by taking the date of the order as 9 February 2018. There was dispute that the order was passed on 9 February 2018 but received by assessee on 28 February 2019. Appeal is required to be filed within 30 days from the date of receipt of order. Therefore, appeal as claimed by the assessee is filed in time and therefore, learned CIT (A) should have perused the various columns filed in form no. 35, which is stated to be true to the best of the information of the director of the company. CIT [A] looked at the date of order i.e. 9/02/2018 , noted that appeal is filed on 28/03/2019 , in column where it is mentioned that there is no delay in filing appeal, held that appeal is delayed by 384 days , no condonation request is filed, hence, dismissed appeal. CIT (A) should have at least given an opportunity to the assessee of clarifying the above facts stated when mobile number and email address of the assessee are provided at column no. 17 of form no. 35. If one looks at the stand of the assessee, appeal is not delayed. Therefore, according to us, the learned CIT (A) could not have held without giving an opportunity of clarifying about the timely filing of the appeal that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as duly prescribed and covered under Section 249(2)(c) of the Act. Thus, the contention of the Hon'ble CIT(A) that there was delay in filing of appeal and the same is not condoned is invalid and bad in law and requires to be quashed. 2. Without prejudice to Ground No. 1 and based on the facts and in the circumstances of the case and in law, the Ld. AO has erred in passing a rectification order by relying on the assessment order dated 16.11.2016 wherein rental income was assessed as Income from Business instead of Income from House Property. Thus, the disallowance of construction interest pre of Rs.14,50,41,337 is bad in law and should be deleted. 3. Without prejudice to Ground No. 1 2 and based on the facts and in the circumstances of the case and in law, the Ld. AO has failed to allow capitalization of the amount of pre-construction interest of Rs.14,50,41,337 in the cost of the portion of the building from which rental income is earned. The appellant prays that capitalization of pre construction interest granted to the appellant. 4. Without prejudice to Ground No. 1 2 and based on the facts and in the circumstances of the case and in law, the Ld. AO has fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee were offered as business income. 06. The learned Assessing Officer held that assessee has initiation of carrying on complex commercial activity of setting up a mall fitted with various amenities and its entire activity is carried out in an organized manner who earned profit by the commercial venture. Accordingly, he taxed the entire rental income as business income. He also did not grant deduction of expenditure, which was disallowed by the assessee against the income from house property. 07. Further, on 15 December 2017, the learned Assessing Officer also issued notice under Section 154 of the Act proposing disallowance of interest expenditure and property tax. The assessee objected to it on several counts. The learned Assessing Officer after perusal of the submission passed rectification order disallowing standard deduction at the rate of 30% amounting to ₹22,08,33,914/- and pre construction interest cost of ₹14,50,41,337/-. The ld AO passed order u/s 154 of the Act on 9/2/2018 holding that above is the mistake apparent from record. Assessee, aggrieved by that order filed an appeal before the learned Commissioner of Income tax (Appeals). 08. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary 2018. As the appeal was filed by the assessee on 28 March 2018 in form no. 35 at column no. 14, assessee mentioned that there is no delay in filing of appeal. 010. According to the provision of Section 249(2)of the Act, the appeal to the learned CIT (A) shall be presented within 30 days from the date of service of the notice of demand relating to the assessment order. As claimed by assessee that order under Section 154 of the Act was not available on ITBA but only the tax computation sheet is available. Such order was made available to the assessee only on 28 February 2019 and therefore, according to the assessee the appeal is field within time provided under Section 249(2) of the Act. 011. The learned CIT (A) perused column no. 14 of form no. 35 but did not peruse the column 2(b) and (c) of the same form. Merely, based on column no. 14 of form no. 35 the appeal of assessee was considered as delayed by taking the date of the order as 9 February 2018. There was dispute that the order was passed on 9 February 2018 but received by assessee on 28 February 2019. Appeal is required to be filed within 30 days from the date of receipt of order. Therefore, appeal as claimed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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