TMI Blog1990 (12) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... orities issued notices, annexures 12 to 38, in exercise of powers under section 143(2) of the Act with a view to assess the income of the assessee for the relevant year. It is these notices which are challenged in this petition. It may be mentioned that such a notice has also been issued in Miscellaneous Petition No. 2697 of 1990 under similar circumstances and for the same assessment year. Challenging the notices, Shri B. L. Nema, learned counsel for the petitioners, submitted that the intimation sent to the assessees under section 143(1)(a)(i) is after due assessment on the basis of the returns submitted. This is clear from the terms of that provision which, by a fiction, requires such intimation as notice of assessment under section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts or documents, is prima facie admissible but which is not claimed in the return, shall be allowed ; (iii) any loss carried forward, deduction, allowance or relief claimed in the return, which, on the basis of the information available in such return, accounts or documents, is prima facie inadmissible, shall be disallowed. " A reading of clause (i) to sub-section (1)(a) of section 143 makes it clear to us that the giving of intimation in terms of that provision is "Without prejudice" to the provisions of subsection (2). This expression/phrase is normally used in negotiation of compromise or offers to settle differences cause pacis in order to guard against any waiver of right should they be ineffectual and go off. Thus, where partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri Nema also urged that because the intimation is deemed to be notice of demand of tax under section 156 of the Act, the proceedings for assessment should be taken as complete in all respects, subject of course to the assessment being reopened in terms of section 147. This contention also is devoid of any substance. The intimation under section 143(1)(a)(i) is only fictionally taken as a notice of demand under section 156. Like all other fictions, to understand the meaning of this fiction so created here, one must look to its purpose. It is only thereafter that the court has to assume all facts and consequences which are incidental or an inevitable corollary to the giving effect to the fiction. One must be cautious to see that the fic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) and, in that event, shall be appealable under section 246(1)(a) of the Act. It was, in passing, submitted that the provisions of section 143(1)(a) (i) are ultra vires being opposed to the principles of natural justice. The argument is that before issuing the intimation which is a demand under section 143(3), no opportunity is afforded to meet the adverse consequences, if any. The fallacy in the suggestion lies in omitting to see that the intimation is issued on the basis of the assessee's own return. What are permissible to be adjusted are (i) only apparent arithmetical errors in the return, accounts or documents accompanying the return, (ii) loss carried forward, deduction, allowance or relief, which is prima facie admissible on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
