TMI Blog2011 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. JUDGMENT The judgment of the court was delivered by C. N. Ramachandran Nair J.- We have heard senior counsel Sri P.K. R. Menon appearing for the appellant and advocate Sri Anil D. Nair appearing for the respondent. The question raised in the appeal filed by the Revenue is whether the Income-tax Officer can give up a rectification proceedings initiated under section 154 and then proceed to make an income escaping assessment under section 147 of the Income-tax Act for the same assessment year. The return filed was processed under section 143(1) and in the intimation sent, deduction claimed on export profit under section 80HHC was allowed in terms of the claim. However, the Assessing Officer later noticed that excessive relief i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be made without a regular assessment or in other words, an intimation issued under section 143(1) should not be subject to an income escaping assessment. The Assessing Officer overruled the objections and completed the income escaping assessment under section 147 of the Act, against which the assessee filed the appeal. The Commissioner of Income-tax (Appeals) allowed the appeal on both grounds, against which the Revenue filed appeal before the Tribunal. The Tribunal based on the decision of the Supreme Court in Asst. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. reported in [2007] 291 ITR 500 held that an intimation under section 143(1)(a) itself is an assessment which could be revised through an income escaping assessment under section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 154 of the Act or to make income escaping assessment under section 147. Both these provisions are self-contained provisions wherein conditions for invoking the powers and the procedure to be followed and the time-limit within which orders are to be passed are mentioned. In this case the Assessing Officer first felt that the excessive relief granted in the computation of relief under section 80HHC is a mistake that could be rectified under section 154 and following the mandatory requirement contained under section 153(3) of the Act, notice was issued to the assessee. The assessee brought to the notice of the Assessing Officer that there is no apparent mistake in the proceedings issued and so much so, the assessment cannot be recti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer cannot issue two proceedings, one under section 154 and the other under section 147. However, we are unable to uphold the principle of constructive res judicata made applicable by the High Court in income-tax proceedings in respect of proceedings one after another initiated by the Assessing Officer successively. The fact that the Assessing Officer initiated rectification proceedings under section 154 does not mean that he should stick to the same only and proceed to issue orders as proposed. The very purpose of issuing a notice to the assessee is to give him an opportunity to raise objection against the proceeding which includes the assessee's right to question the maintainability of the rectification proceedings. If the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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