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TMI Blog2012 (8) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... by declaring income under completed contract method which is contrary to the method advocated by the High Court subsequently affirmed, by the Hon'ble Supreme Court. 2.2 Having regard to the Hon'ble Supreme Court decision in the case M/s Goetze India, the Ld. CIT(A) ought to have appreciated that when the claim of the assessee was not made through a revised return of income, the claim (cannot be entertained. It is submitted that the Hon'ble Mumbai Tribunal in case of Jay Bharat Co Op Housing Society Limited (125 ITD 90) has also expressed the view that even appellate authorities cannot allow an assessee to revise its income otherwise than by filing a revised return. 2.2 The ld. CIT(A) failed to appreciate that the assessee filed petition under section 154 on 09.03.2007 seeking rectification of intimation dated 08.07.2002 and recomputation of its income, which is beyond the time limit and therefore, the petition of the assessee cannot be entertained. 3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the Commissioner of Income Tax(Appeals) may be set aside and that of the Assessing Officer restored." 2. The DR, at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjustment can be made nor any levy of additional income tax can be made on or after 1.6.1999. Thus, the powers of the Assessing Officer under this section are very limited and restricted only to the return of income filed by the assesse. The Assessing Officer cannot visit beyond that return except to compute tax or interest after adjustment of pre-paid taxes. Therefore, according to the clear provisions of sec. 143(1), it would be beyond the jurisdiction of the Assessing Officer to compute depreciation on the basis of WDV determined in earlier year/years. The Assessing Officer does not have such power to disturb the income disclosed in the return. He is not to compute the income of the assessee even by issue of intimation on the basis of return of income as declared by the assessee. The assesse, in the instant appeal, was seeking a relief which was not found in the return of income filed by it. The assessment in the instant case was framed u/s 143(1) on the basis of return of income. The WDV taken by the assessee in the return of income was not the WDV as determined as per record for the immediate preceding year. Thus, any adjustment made with respect to WDV for the year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at chit dividend received has to be taxed in the year of receipt and chit loss has to be allowed on proportionate time basis by distributing it over the period remaining subsequent to bid auction. This was disputed by the appellant and was subject matter of litigation upto Supreme Court. The Hon'ble Chennai High Court in its order dated 19.06.2006, held that the dividend income has to be taxed in the year it accrued and that the chit loss should be allowed in the year of its accrual. Thus while the assessing officer's method was approved in assessing dividend income, the appellant's method was approved in respect of chit loss. On further appeal, by the department, the Hon'ble Supreme Court, by its order dated 27.02.08, confirmed the decision of the Hon'ble High Court Chennai. Thus, the dispute regarding method of accounting reached its finality on 27.02.08. 5. Before the Chennai High Court passed its order, the assessments for 1998- 99;1999-2000 & 2000-2001 were reopened by the assessing officer u/s.147. The reassessments for these years were completed on 28.12.2006 after the High Court's order dated 19.06.06. In these assessments, income /loss computation was done on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e method of computation fixed by the High Court's order dated 19.06.2006 having become final by the Supreme Court's order dated 27.02.08, the rectification application filed on 09.03.2007is in time. 8. I have given deep thought and considered the various arguments of the authorized representative. The method of computation of income from the chit business that has been followed in the return and accepted in the intimation u/s.143(1)(a) dated 08.07.02 ( completed contract method) is not a correct one and the correct method has been laid down in the High Court's order dated 19.06.06 which has become final by the Supreme Court's order dated 17.02.08. The core issue is therefore whether the decision acts retrospectively. In para 42 of their order in the Saurashtra Kutch Stock Exchange Ltd case (2008) 173 Taxman 322/ 305 ITR 227, the Hon'ble Supreme Court has held: "In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a 'new rule' but to maintain and expound the 'old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also subsequently affirmed by the Hon'ble Supreme Court. The CIT(A) further directed the Assessing Officer to determine the loss of earlier years to be brought forward. 9. Being aggrieved by the above order of the CIT(A), the Revenue is in appeal before us. 10. The sole contention of the Revenue is that as no income was computed by the Assessing Officer in the instant case and the return filed by the assessee was accepted u/s 143(1) of the Act by issuing an intimation u/s 143(1), the Assessing Officer has no power to amend the income disclosed in the return of income. The Assessing Officer cannot amend the income of the assessee in a proceeding u/s 154 of the Act in continuation of proceeding u/s 143(1) of the Act. For the above submission, the DR placed reliance on the decision of Ahmedabad Bench of the Tribunal in the case of Choice Aquaculture (P) Ltd (supra). 11. On the other hand, the A.R supported the order of the CIT(A) and his only submission was that in view of the Hon'ble Supreme Court's decision in the case of Saurashtra Kutch Stock Exchange Ltd (supra), non-consideration of the decision of the Hon'ble Jurisdictional High Court presented a case of mistake apparent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to do an act which cannot be done directly under the provisions of section 143(1). The proposition of law is well-settled that what cannot be done per directum' is not permissible to be done 'per obliquum', meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud. Therefore, the. Commissioner (Appeals) had rightly upheld the rejection of application filed by the assessee under section 154." 13. We find that the CIT(A) has not taken into consideration the above decision while deciding the appeal of the assessee. 14. We further find that section 155(4) of the Act reads as under: "(4) Where as a result of proceedings initiated under section 147, a loss or depreciation has been recomputed and in consequence thereof it is necessary to recompute the total income of the assessee for the succeeding year or years to which the loss or depreciation allowance has been carried forward and set off under the provisions of sub-section (1) of section 72, or sub-section (2) of section 73, or sub-section (1) 21[or sub-section (3)] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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