TMI Blog2003 (6) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has contended that this issue is covered in assessee s favour by the decision reported in 28 T.W. 144 (Pr. 5). As against this, the learned Departmental Representative of Revenue has relied on the order of AO and CIT(A). 4. We have considered the rival contentions, the relevant material on record as also the cited decisions. In our considered opinion when the provisions of s. 143(1A) stands amended by the Finance Act, 1993 with retrospective effect from 1st April, 1989 and the assessment year under consideration being 1990-91, the amended provision of law will apply in the matter in hand as has rightly been held by the learned CIT(A). As per the amended provision of s. 143(1A), additional tax is leviable even when after the prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under s. 143(1)(a) was valid is not correct in view of the judgment of Hon ble Calcutta High Court in Modern Fibotex India Ltd. Anr. vs. Dy. CIT (1995) 126 CTR (Cal) 69 : (1995) 212 ITR 496 (Cal) wherein the Hon ble High Court has held that once a notice under s. 143(2) has been issued, the AO can neither make prima facie adjustment, nor can issue intimation under s. 143(1)(a). It has been contended that the same view has been taken in Gujarat Poly Avx Electronics Ltd. vs. Dy. CIT (1996) 135 CTR (Guj) 141 : (1996) 222 ITR 140 (Guj), CIT vs. H.E.G. Ltd. (2001) 171 CTR (MP) 318, CIT vs. Regional Soyabean Products Co-operative Union Ltd. (1999) 155 CTR (MP) 512 : (1999) 239 ITR 217 (MP), Peico Electronics Electricals Ltd. Anr. vs. Dy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Guj) 141 : (1996) 222 ITR 140 (Guj) the Hon ble Gujarat High Court has held that the CBDT has, vide Circular No. 549, dt. 31st Oct., 1989 advised the AOs to issue intimation under s. 143(1) before issuance of notice under s. 143(2) of the Act. It has also been held that after issuance of notice under s. 143(2), it is not open for AO to make adjustment or to pass order under s. 143(1), but he has to make adjustment (assessment) under s. 143(3) of the Act. In Modern Fibotex India Ltd. Anr. vs. Dy. CIT Ors., the Hon ble Calcutta High Court has held that once notice under s. 143(2) has been issued, there is no scope for AO either to make prima facie adjustment or to issue an intimation under s. 143(1)(a). Thus, after issuance of notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 143(1)(a)(i), as the provision stood at the relevant time (asst. yr. 1990-91), being imperative, due to the word "shall" having been used in this context, and the intimation having not been sent to the assessee by 26th April, 1991, on which date of notice under s. 143(2) dt. 18th April, 1991, was served on assessee, no intimation under s. 143(1)(a) could, therefore, have legally been sent to the assessee and the intimation under s. 143(1)(a) having been served on assessee on 7th Aug., 1991, may reasonably be presumed to have been issued/sent from the office of AO a few days prior to 7th Aug., 1991, or in any case, in reasonable probability within a month prior to 7th Aug., 1991, in the absence of there being any specific material/eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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