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TMI Blog2023 (4) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... nue being added by the Ld.AO, as not recognised by the assessee. Since the same is not emanating from the order of CIT(A) against which the assessee is in appeal.CIT(A) has not gone into merits and has held there is no mistake apparent on record u/s. 154 with respect to the impugned issue. From the perusal of facts in our considered view, the addition made cannot be co Disallowance in respect of the alleged employees contribution to the EPF/ESI - It is a mistake apparent on record that, the Ld.AO incorporated the addition while passing the assessment order without considering or calling for the details during the assessment proceedings. Even otherwise when the assessee s case was picked up for complete scrutiny, there was no need to issue an intimation u/s. 143(1)(a) of the act separately, disallowing the employees contribution towards ESI/PF deposited beyond the due date by the assessee. We therefore allow the present appeal only in respect of Ground no. 4(d). The assessee is granted liberty to raise the disallowance before the Ld.CIT(A) in the appeal that is pending for disposal before the first appellate authority against the assessment order dated 17.05.2021. - ITA No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case. b. The authorities below failed to appreciate the fact that the said uncertified bills on account of deficiency in works/return of goods are included in work-in-progress and treated as income once the work is certified by the authorities and consequently, the said accounting treatment is tax neutral and warranted no addition on the facts and circumstances of the case. c. Without prejudice, the authorities below erred in law in not allowing the corresponding expenditure incurred in respect of the uncertified bills which is contrary to the matching principles and consequently the addition made is bad in law on the facts and circumstances of the case. d. The authorities below erred in law in mechanically adopting the adjusted income determined under section 143(1) of the Act as the starting point for arriving at the assessed income under section 143(3) of the Act on the facts and circumstances of the case. e. The authorities below ought to have adopted the returned income as the starting point for arriving at the assessed income under section 143(3) of the Act on the facts and circumstances of the case. f. The authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. He accordingly prayed for the delay to be condoned. 2.1 On the contrary, the Ld.DR vehemently opposed the condonation petition filed by the assessee. 2.2 We have perused the submissions advanced and note that substantial justice has not been rendered to the assessee in the present facts of the case. 2.3 He referred to the decision of Hon ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji Ors., reported in (1987) 167 ITR 471. 2.4 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non deliberate delay. We have to prefer substantial justice rather than technicality in deciding the issue. As observed by Hon ble Supreme Court in case of Collector Land Acquisition Vs. Mst. Katiji Ors.(supra), if the application of the assessee for condoning the delay is rejected, it would amount to legalise injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. 2.5 In the interest of justice and respectfully following the principle laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit amounting to Rs.3,32,60,165/-, appearing in Form 26AS. 3.4 With regard to the first addition, it was pointed out that the uncertified bills deducted from the turnover in the statement of Profit and Loss relates to Credit notes issued by the assessee on account of Contractees not allowing the measurements/quantification and value in the running bills submitted to them by the assessee as per the terms of the contract. It was brought to the notice of the assessing officer that the deductions made in the bills were in fact included in the subsequent bills issued to them in the same year or in the subsequent year. Further it was brought to the notice of the Assessing Officer of the fact that wherever uncertified bills amounts have not been included in the bills of the current year, the same would be included in the included in the work-in-progress, as the Contractees have not certified the correctness of the claim as at the end of the year and the same will be included in the turnover in the next financial year, subject to the acceptance by the Contractees as to the correctness of claim. Bills to bills and credit notes have been reconciled and presented to the Assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning for making such an addition. If the appellant considers that the AO is incorrect in doing so, the remedy lies in filing an appeal against the said assessment order. The provisions of Section 154 cannot be used to review an order already passed. Since there isn't any mistake apparent from record, the same could not have been rectified by the AO. 4.5 As regards the issue of disallowance of Rs 9,30,900/- relating to employee's contribution to EPF/ESI not deposited on or before the specified date, the adjustment was made by the AO during processing under Section 143(1)(a) of the Act. If the appellant was aggrieved by the same, it should have contested the said order passed by the AO. While passing order under Section 143(3) of the Act the AO has just adopted the income computed as per Section 143(1)(a) of the Act and there isn't any mistake in doing so. Since there isn't any mistake apparent from record, the same could not have been rectified by the AO. 4.6 Considering above the ground of appeal 4 is dismissed. 5. Aggrieved by the order of Ld.CIT(A), assessee is in appeal before this Tribunal. 5.1 We have perused the submissions advanced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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