TMI Blog2009 (8) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... into scrutiny assessment, the AO sought to issue a notice under s. 148 of the Act wherein it was stated that he proposed to reassess the income . The said notice is dt. 2nd Dec, 2005 which was stated to have been served on 8th Dec., 2005 and the assessee has time to file return, in response to the said notice, within 31 days from the date of receipt of the notice. Before completion of the said period, the assessee filed letter dt. 4th Jan., 2006 along with revised return under s. 139(5) of the Act, on 6th Jan., 2006 and stated that the following omissions were discovered in the original return filed on 30th Oct., 2004 : (i)Omission of claim for deduction under s. 80-IB in respect of one of our 'industrial undertaking'; (ii)Adjustment of ₹ 17,96,19,444 towards unabsorbed brought forward depreciation as against the amount of ₹ 17,90,35.686 as determined in your order under s. 154 dt. 11th Oct., 2004. 3. As could be seen from the assessment order, excess claim of deduction under s. 80HHC of the Act was noticed by the AO which prompted him to issue notice under s. 148 of the Act. According to the AO, the assessee computed deduction under s. 80HIIC at &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. He observed that the apex Court, in the case of Sun Engineering Works ( P) Ltd. (supra) analysed the provisions of s. 148 of the Act and noticed that reassessment proceedings initiated under s. 148 of the Act are meant to bring to tax any income which escaped assessment and in such proceedings assessee cannot make a new claim for deduction. Though the assessee relied upon several decisions in support of its contention that a return processed under s. 143(1) cannot be equated to assessment , the learned CIT relied upon the decision of the jurisdictional High Court judgment in the case of CIT v . Anderson Marine Sons (P) Ltd. [2004] 189 CTR (Bom) 118 : [2004] 266 ITR 694 (Bom) wherein, in the context of scope of exercise of supervisory jurisdiction of the CIT under s. 263 of the Act, the Court observed that an intimation under s. 143(1) of the Act has to be considered at par with an. assessment made under s. 143(3) of the Act. 6. Aggrieved, assessee is in appeal before us. The learned counsel filed a paper book and also filed written submissions by enclosing the relevant case law, to submit that the decision of the Supreme Court in the case of Sun Engineering Works ( P) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise the power of the revisional authority would stand curtailed. Thus the aforesaid decision has limited applicability and in fact there are several decisions wherein contrary view was taken, though in a different context. He thus, strongly submitted that the order passed by the AO is neither erroneous nor prejudicial to the interests of the Revenue and the case of the assessee does not fall within the ratio laid down by the apex Court in the case of Sun Engineering Works ( P) Ltd. (supra) in the light of the fact that the assessee had time for filing the revised return upto 31st March, 2006, before which date the assessee filed the revised return and thus assessee's right to file the revised return cannot be curtailed merely because a notice was issued under s. 148 of the Act. 7. On the other hand the learned Departmental Representative strongly relied upon the decision of the Hon'ble jurisdictional High Court cited (supra) and submitted that the expression assessment used in s. 139(5) of the Act covers in its scope an order passed under s. 143(1) of the Act. He further submitted that by applying the principle of 'purposive construction', the assessee shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing further to be noticed is that intimation under s. 143(1)( a) is given without prejudice to the provisions of s. 143(2). Though technically the intimation issued was deemed to be a demand notice issued under s. 156, that did not per se preclude the right of the AO to proceed under s. 143(2). That right is preserved and is not taken away. Between the period from 1st April, 1989, and 31st March, 1998, the second proviso to s. 143(1)(a) required that where adjustments were made under the first proviso to s. 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from 1st April, 1998, the second proviso to s. 143(1)(a) was substituted by the Finance Act, 1997, which was operative till 1st June, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to s. 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between 1st April, 1998, and 31st May, 1999, sending of an intimation under s. 143(1)(a) was mandatory. Thus, the legislative intent is very clear from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain, J.) in Apogee International Ltd. v. Union of India [1997] 137 CTR (Delhi) 93 : [1996] 220 1TR 248 (Del). It may be noted above that under the first proviso to the newly substituted s. 143(1), w.e.f. 1st June, 1999, except as provided in the provision itself, the acknowledgement of the return shall be deemed to be an intimation under s. 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgement is not done by any AO, but mostly by ministerial staff. Can it be said that any 'assessment' is done by them ? The reply is an emphatic 'no'. The intimation under s. 143(1)(a) was deemed to be a notice of demand under s. 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under s. 143(1)(a), the question of change of opinion, as contended, does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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