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TMI Blog2025 (1) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitle to only raise a demand in regard to income legally assessable under the provisions of Act. The submissions raised before us on merits quiet substantially make out a case of assessee, however, as the assessee has reached us at appellate stage through proceedings initiated by way of erroneous remedy of filing a rectification application and not a regular appeal before the CIT(A), it will be not appropriate to enter in to the merits and give a relief to the assessee, and perpetuate the illegality further. As in Shivganga Drillers Private Ltd. [ 2022 (5) TMI 1427 - ITAT INDORE] has taken into consideration decision in Akbar Mohammad, Nagaur [ 2022 (2) TMI 479 - ITAT JODHPUR] it is a case in point that the assessee did not file any app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 30% of total income for which assessee moved a rectification application u/s. 154 of the Act, however, the same was not entertained by the Assessing Officer and even assessee failed before CIT(A) and has accordingly approach this Tribunal raising following grounds:- 1. On the facts and circumstances of the case, the order passed by the Commissioner of Income Tax (Appeals), Income Tax Department (hereinafter referred to as CIT(A), ITD) is bad both in the eye of law and on facts. 2. On the facts and circumstances of the case, the learned CIT(A), ITD has erred both on facts and in law in confirming the action of the ADIT, CPC in rejecting the application filed by the assessee under section 154 for rectification of the intimation order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t CPC has erred in applying higher rate of tax of 30% despite the fact that the total turnover or the gross receipts in the previous year does not exceed Rs.50 crores. The CIT(A) has observed that the Excise Duty of Rs.8,02,84,477/-, VAT/Sales Tax of Rs.1,25,04,979/- and other income comprising of interest, dividend, rent etc. of Rs.8,11,40,012/- should form part of the turnover/gross receipts and thus upheld the action of Assessing Officer holding applicability of 30% rate of tax as turnover/gross receipts of the previous year 2015-16 exceeds Rs.50 croroes. 4. The ld. Counsel has submitted that a debatable issue cannot be adjusted by way of intimation u/s. 143(1) of the Act and has relied a Bangalore Bench decision in the case of M/s. Klub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thoughtful consideration to the facts before us and the contentions of ld. Counsel, we are of considered view that there appears to have been en error on the part of assessee to go for rectification proceedings instead of filing a regular first appeal before CIT(A) against the initiation processed u/s. 143(1) of the Act. 8.1 In this context we find that in I.T.A No.373/Agra/2018; M/s.Dixit Rice Mill, Auraiya Versus DCIT order dated 10-01-2020, Agra Bench has dealt with the issue with following observation; 4.2. From the bare perusal of the said provisions of the Act, it is abundantly clear that the appeal lies to the CIT(A) from an order passed / initiation given by the CPC u/s.143(1) 143(1A) of the Act if the assessee denies his liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect amount of tax and not to unjustly benefit at the cost of tax payer. Therefore, in the interest of substantial justice, we deem it expedient to restore the issue to the file of the Assessing officer with a direction to pass appropriate orders deleting the addition / disallowance after duly considering the settled judicial position in this regard, which have been decided in the three cases as enumerated above in Para 5. 9. At the same time, we are of considered view the technicalities of the law can never become a handicap of assessee and the Revenue is entitle to only raise a demand in regard to income legally assessable under the provisions of Act. The submissions raised before us on merits quiet substantially make out a case of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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