TMI Blog2005 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment to the returned income. (ii) The CIT(A) ought to have appreciated that when the Assessing Officer has no power to amend the returned income, he cannot do the same indirectly by way of rectification of an intimation. (iii) The CIT (Appeals) ought to have appreciated that additional tax being penal in nature, cannot be levied in the case of addition of income/reduction of loss arising purely out of arithmetical mistakes." 2. The facts of this case are in narrow compass. The assessee filed its return of income for the assessment year 1997-98 on 28-11-1997 and the same was processed under section 143(1)(a) on 23-3-1999 accepting the loss declared by the assessee of Rs. 7,44,36,381. Subsequently, it was noticed by the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to levy additional tax, was deleted and hence the Assessing Officer could not levy additional tax on 15-1-2001 while passing the order under section 154 of the Income-tax Act. The CIT (Appeals) rejected both the contentions of the assessee, but the assessee was given relief in the quantum of additional tax levied. Not satisfied with the order of the CIT (Appeals), the assessee is on further appeal before the Tribunal. 4. We have heard the ld. CA, Shri K.M. Jose and the Id. departmental representative for the revenue. The ld. CA submitted that the return for the assessment year 1997-98 was accepted and processed under section 143(1)(a) on 23-9-1999 and the loss declared by the assessee at Rs. 7,44,36,381 was accepted. The ld. CA f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the ld. CA for the assessee, it is dear that no adjustments are made to the total loss declared by the assessee i.e., Rs. 7,44,36,381. The intimation is dated 23-3-1999. In the intimation, in the computation of tax liabilities the demand raised is Nil. The Assessing Officer has rectified the said intimation first on 31-1-2000 and subsequently on 15-1-2001. 6. Section 143(1)(a) of the Income-tax Act has undergone major changes by the Direct Tax Laws (Amendment) Act, 1987 with effect from 1-4-1989. The section as it stood up to assessment year 1997-98 is as under: "Section 143(1)(a): Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142- (i) If any tax or interest is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid adjustments: Provided also that an intimation for any tax or interest due under this clause shall not be sent after the expiry of two years from the end of the assessment year in which the income was first assessable." As per the second proviso to section 143(1)(a), the Assessing Officer has to send intimation to the assessee, if, while processing the return of income, the Assessing Officer has made adjustment to the income or loss declared by the assessee and notwithstanding that no tax or interest is found due from him. In other words, there was statutory obligation on the Assessing Officer to send the intimation to the assessee only if adjustments are made to the income or loss declared by the assessee in his return. If no adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. As per the substituted proviso which is applicable from the assessment year 1998-99 whether the Assessing Officer makes any adjustment or not to the income or loss declared in his return, it makes statutorily binding on him to send the intimation. In the present case, the Assessing Officer has not made any adjustment to the loss declared by the assessee and this fact is clear from the xerox copy of the intimation filed by the assessee's CA. If no adjustment is made by the Assessing Officer, then there was no statutory obligation to send the intimation. If without any statutory sanction, if the intimation is sent, then it will be non est intimation. If the intimation is non est, then the Assessing Officer cannot rectify or amend the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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