9911796707
TMI Blog2003 (4) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1990, declaring loss of Rs. 49,65,836. This return was processed under section 143(1)(a) with certain adjustment in the loss returned and an intimation to that effect was issued and served upon the assessee. Thereafter, it has been noticed that deduction for Rs. 7,00,000 on account of deposit made against a bank guarantee furnished has been wrongly claimed and allowed under section 43B of the Act. After the intimation under section 143(1)(a) was sent, a notice for regular assessment under section 143(1)(a) was issued on April 18, 1991, and proceedings for regular assessment under section 143(3) came into existence. It appears that thereafter the Assessing Officer was of the opinion that prima facie the deduction of Rs. 7,00,000 claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred wherein the Revenue has formulated the following questions stated to be substantial questions of law that arise for consideration in the appeal as under: "(i) Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal is justified in holding the disallowance of bottling fee amount to Rs. 7 lakhs to be not sustainable on the ground that the provisions of section 43B would not apply in a case where cash payment was made to the bank for obtaining bank guarantee ignoring the fact that section 43B deals with 'actual payment' and bank guarantee cannot be equated with actual payment? (ii) Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into by the Assessing Officer and any proceedings thereafter cannot be taken which remain of provisional character only. All questions must be decided in regular proceedings which alone shall attain finality. That is the clear ratio emanating from the decision of the Supreme Court in CIT v. Gujarat Electricity Board [2003] 260 ITR 84 and applied to a like case as in hand by the Calcutta High Court in like circumstances to hold that rectification of an intimation under section 143(1)(a) is not permissible after issuance of notice under section 143(2). Reliance was placed upon the decision of the hon'ble apex court in CIT v. Gujarat Electricity Board [2003] 260 ITR 84 and the decision of the Calcutta High Court in CIT v. Coventry Spring and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order of the Tribunal which arose from regular assessment under section 143(3). Obviously the said question of law will require consideration of rival contentions and final decision thereon will prevail. It will be too early to predict at this stage that the Assessing Officer committed an error apparent on the face of the record while issuing intimation under section 143(1)(a) in the first instance by not making an adjustment of the deduction claim in question. Such a debatable issue, otherwise is not permissible under section 143(1)(a) for raising any addition derived on the return as part of self-assessment on the basis of material disclosed in the return; which has given rise to a substantial question of law to be decided in appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular assessment under section 143(3) are commenced, there cannot be any recourse to bring into existence any order under section 143(1)(a) of the Act whether originally or by rectification. The question before the Calcutta High Court arose in like circumstances, the rectification of an order under section 143(1)(a) having been made by the assessing authority after institution of proceedings under section 143(3) and set aside by the Tribunal. We are in respectful agreement. In the present case, the rectification proceedings commenced and concluded after issuance of notice under section 143(2). Therefore, we are of the opinion that the principles applicable to the facts of the case are well settled and rightly applied to the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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