TMI Blog1987 (11) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment under section 141A of the Income-tax Act, 1961, and no appeal was maintainable against it ? " The material facts giving rise to this reference, briefly, are as follows: The assessee is a subsidiary of the State Bank of India. For the assessment year 1981-82, the assessee submitted its return. As according to the return filed by the assessee, there was a business loss of Rs. 7,29,640 while the amount of tax paid during the assessment year in question by or on behalf of the assessee was Rs. 56,07,084, the assessee submitted an application on June 5, 1981, for refund of Rs. 56,07,084. The Income-tax Officer proceeded to make a provisional assessment under section 141A of the Act of the sum refundable to the assessee. For makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner dismissed the appeal. The assessee thereupon filed a further appeal before the Tribunal which dismissed the appeal affirming the view of the Commissioner that no appeal lay against the provisional assessment made by the Income-tax Officer under section 141 A of the Act. Aggrieved by that order, the assessee sought reference and it is at the instance of the assessee that the aforesaid question of law has been referred to this court for its opinion. Shri Palkhivala, learned counsel for the assessee, contended that the order passed by the Income-tax Officer purporting to be one under section 141 A of the Act was in reality an order under section 143(3) of the Act and an appeal was, therefore, competent. It was contended that the dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .-(1) Where a return has been furnished under section 139 and the assessee claims that the tax paid or deemed to have been paid under the provisions of Chapter XVII-B, or Chapter XVII-C, exceeds the tax payable on the basis of the return and the accounts and documents accompanying it, the Income-tax Officer, if he is of the opinion that the regular assessment of the assessee is not likely to be made within six months from the date of furnishing of the return, shall make in a summary manner within the said six months provisional assessment of the sum refundable to the assessee, after making such adjustments to the income or loss declared in the return as are required to be made under sub-section (2) with reference to such return, accounts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 16, 1981, by the Income-tax Officer could not be held to be an order under section 141A of the Act that it was, in fact, an order under section 143(3) of the Act and that an appeal from that order was competent. It is well-settled that reference to a particular provision of law by the Income-tax Officer would not be decisive if the source of power is referable to another provision of law under which the order in question could have been properly passed. Let us, therefore, examine how the order dated December 16, 1981, come to be passed by the Income-tax Officer. Now, the assessee after filing its return for the assessment year 1981-82, submitted an application on June 5, 1981, for refund on the ground that the tax paid by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictly on the basis of the assessee's return. It was virtually an assessment on admission. Under that provision, the Income-tax Officer had no power, as held by the Supreme Court in Jaipur Udyog Ltd.'s case [1969] 71 ITR 799 (SC), to make a provisional assessment by holding that certain claims made by the assessee were not justified according to law. But section 141 of the Act empowers the Income-tax Officer to make certain adjustments, as provided by sub-section (2) of section 141 A for provisionally determining the sum refundable to the assessee. Even assuming that the Incometax Officer had erroneously disallowed certain deductions while passing the order of provisional assessment of the sum refundable to the assessee, that fact would not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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