Shree Shivam Attires Private Limited Shree Shivam Shopping Mall,Station Road, Durg, Chhattisgarh Station Road, Durg, Chhattisgarh v. The Assistant Commissioner Of Income Tax Circle- 2 (1), Bungalowno

HIGH COURT OF CHHATTISGARH, BILASPUR TAXC No. 202 of 2023 Shree Shivam Attires Private Limited Shree Shivam Shopping Mall,Station Road, Durg, Chhattisgarh Station Road, Durg, Chhattisgarh ---- Petitioner Versus The Assistant Commissioner Of Income Tax Circle- 2 (1), BungalowNo. 32/32, 32 Bungalows, Bhilai, District- Durg- CG Pin- 491006 No. 32/32, 32 Bungalows, Bhilai, District- Durg- CG Pin- 491006 ---- Respondent For Appellant : Shri S. Rajeshwara Rao, Advocate For Respondent: Shri Amit Chaudhari, Advocate For Respondent: Shri Amit Chaudhari, Advocate Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board Per Goutam Bhaduri, J 15/12/2023 Heard. 1.Learned counsel for the appellant would submit that pursuant to the return filed on 25/10/2018 summary assessment was carried out under Section 143 (1) of the Income Tax Act on 18/05/2019, which amenates from the audit objection that an amount of Rs.25,81,110/- deduction was not allowed. He would further submit that the entire amount would touch upon the contribution towards the EPF and ESIC. He would further submit that the application for rectification though was filed under the nomenclature which is embodied in Section 154 of the Act return filed on 25/10/2018 summary assessment was carried out under Section 143 (1) of the Income Tax Act on 18/05/2019, which amenates from the audit objection that an amount of Rs.25,81,110/- deduction was not allowed. He would further submit that the entire amount would touch upon the contribution towards the EPF and ESIC. He would further submit that the application for rectification though was filed under the nomenclature which is embodied in Section 154 of the Act but the issue touches upon the merit as certain dis-allowance which was made was otherwise available and when the issue traveled up to the Tax Appellate Tribunal, the Tribunal instead of deciding the case on merits has simply adjudicated the issue on the ground that the rectification application was not maintainable. He would further submit that it is a settled proposition that the assessee cannot be a taxed on the amount on which the tax is not legally imposable, therefore, apparently it would be a mistake which also touches upon the merit. He placed his reliance in the matter of Akbar Mohammad Prop. M/s Mohd. Rafique Associates Versus the ACIT, CPC, Banglore {2022 (2) TMI 479-ITAT Jodhpur}. Learned counsel for the respondent department would submit that he has no objection if the case is remitted back to the appellate tribunal to adjudicate on merits. After going through the order it appears that though the application was filed under the nomenclature of rectification but if certain amount on which the tax is imposed is not legally recoverable then it also touches upon the merit. Consequently, in order to advance the cause on merits about the issue, we set aside the order of the ITAT dated 07/07/2023 and remit back the same to the Income Tax Appellate Tribunal to adjudicate the same on merits. 4. With the aforesaid observation, the appeal stands disposed of. Sd/- Sd/- (Goutam Bhaduri) (Deepak Kumar Tiwari) Judge Judge