TMI Blog2001 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of sale of kerosene and transport. He is also engaged in other kind of businesses which he is carrying on as partner with some other persons. He also owns certain immovable properties which yields yearly income liable to be taxed under the provisions of the IT Act. The petitioner is being assessed to payment of income-tax as an individual. 2. The present petition relates to asst. yr. 1991-92 for which the accounting year is 1st April, 1990, to 31st March, 1991. 3. The petitioner for the year in question (asst. yr. 1991-92 filed his income-tax return on 30th Sept., 1991, in his individual capacity. In the statement of account submitted in the return the petitioner disclosed some of his income to have been received from "Long-term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 143(1)(a) of the Act with that of the regular assessment proceedings under s. 143(3), Learned counsel urged that under s. 143(1)(a), the AO (ITO) is only empowered to make prima facie adjustment appearing in the statement of return filed by the assessee and that too as enumerated in first proviso to s. 143(1)(b) ibid. It was urged that the change made by the AO (ITO) in the hand "Long-term capital gains" disclosed by the assessee to that of "Adventure in nature of trade" is not permissible under s. 143(1)(a) and hence order to that extent is rendered without jurisdiction and falling outside the perview of s. 143(1)(a) of the Act requiring it to be set aside. This, in substance, was the submission of learned counsel for the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no merit in it. Once this Court admits the writ petition under Arts. 226 and 227 of the Constitution of India against an order then this Court ordinarily would not dismiss the writ petition essentially on the ground of alternative remedy. Indeed this issue was examined by their Lordships of Supreme Court in the case L. Hirday Narain vs. ITO (1970) 78 ITR 26 (SC) : AIR 1971 SC 33 : TC 56R.1106, while overruling the preliminary objection so raised by the respondents, this is what their Lordships ruled : "An order under s. 35 of the IT Act is not appealable. It is true that a petition to revise the order could be moved before the CIT. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justment made by the AO (ITO), I find that they do not fall in any of the category specified supra. The question, whether a particular income disclosed by the assessee to be taxed under a particular head cannot be changed for being taxed under altogether a new source of income under s. 143(1)(a). The impugned adjustment in the present case does not appear to me to be prima facie bad, In the return, assessee disclosed that a particular income is being shown to be received under the head "Long-term capital gains". This was changed to an income to have been received from an "Adventure in the nature of trade" by the learned AO (ITO). 14. This in my opinion, needed a factual inquiry and could not be termed as a prima facie adjustment within th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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