TMI Blog1994 (10) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... preliminary legal objection which will be considered first. According to him, the Assessing Officer did not pass any " order ", and, therefore, the CIT could not invoke the provisions of section 263 in law. 3. The ld. counsel for the assessee has invited our attention to section 263(1) of the Act according to which the section could be invoked if the CIT " considers that any order passed therein by the Assessing Officer " is erroneous in so far as it is prejudicial to the interest of the revenue. He, therefore, submitted that it was necessary that there should be an " order " in existence passed by the Assessing Officer. Our attention has thereafter been invited to the provisions of section 143(1)(a)(i) of the Act introduced w.e.f. 1-4-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order " passed under this Act. However, it was only because the intimation under section 143(1)(a)(i) did not amount to an order, that it became necessary to deem it to be a notice of demand issued under section 156. 5. Our attention was further invited to the Explanation below section 143(5) of the Act inserted by the Finance (No. 2) Act, 1991 w.e.f. 1-10-1991 which is reproduced below : --- " Explanation --- An intimation sent to the assessee under sub-section (1) or sub-section (1B) shall be deemed to be an order for the purposes of section 264. " It was emphasised that the intimation under section 143(1) was deemed to be an 'order' for the purpose of section 264 only and the Explanation did not include section 263. In view of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an intimation referred to in clause (b) of sub-section (1), within a period of three months from the end of the month in which it is so brought to his notice and if no such amendment is made within the said period of three months, the assessee may appeal to the Deputy Commissioner (Appeals), or as the case may be, Commissioner (Appeals) against such intimation and the provisions of section 246 and section 249 shall have effect as if the said intimation were an order for the purposes of those sections." The ld. counsel for the assessee submitted that the above provisions related to section 143(1)(b) of the Act only and not section 143(1)(a) and this also supported his submission that the intimation under section 143(1)(a) was not " an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation would be an absurd one and, therefore, a literal interpretation was not justified and it should be held that the intimation was an "order" for the purpose of section 263 of the Act. 10. We have considered the rival submissions carefully. At the outset, before proceeding further, we may point out a factual error in the last part of the argument of the ld. counsel for the assessee relating to the proviso below section 154(2) of the Act. The proviso speaks of " an intimation referred to in clause (b) of sub-section (1) ". The ld. counsel has taken it to mean section 143(1)(b) of the Act. However, in our opinion, it only refers to section 154(1)(b) of the Act which has also been reproduced by us above. This sub-clause speaks of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been used for the first time in the Income-tax Act by virtue of the Amendment to the scheme of assessments w.e.f. 1-4-1989. Since it is a new word, it is evident that its meaning will be not the same as the meaning of the earlier expression " order " or " assessment ". The Legislature has not thought it fit to deem such an intimation to be an order for the purpose of section 156 and section 264. The fact that the amendment in the Explanation below section 143(5) relates to section 264 only and not to section 263 is a clear pointer that it was not the intention of the Legislature to bring an intimation under section 143(1)(a)(i) within the purview of section 263. The ld. counsel's argument finds further support from the amended provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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