TMI Blog2005 (11) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... the returned income unless revised return is filed." 3. Return of income for the present year was filed at Rs. 14,60,240. The same was processed under the provisions of section 143(1) of the Act. Subsequently assessee filed an application to claim higher depreciation. The depreciation was claimed in the original computation at Rs. 6,45,841. As against this, the revised claim of assessee for depreciation was Rs. 7,20,154. Thus as per application the assessee sought from Assessing Officer that its income should be computed at Rs. 13,85,924 in place of its return at Rs. 14,60,237. The Assessing Officer rejected such request of the assessee as per his letter dated 20-10-2004 which is reproduced below for the sake of convenience:- "Your application for rectification is filed on the following issues is on account of claim of depreciation i.e., from original claim of depreciation of Rs. 6,45,841- up to Rs. 7,20,154. It is mentioned in the application that the excess claim of depreciation was on account of in consequence to order passed under section 143(3). The assessee's application is duly considered and it is seen that order under section 143(3) was passed on 16-2-2004 for assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the original case and recalculate the written down value for himself in the relevant assessment year and the earlier determined WDV does not operate as res judicata or estoppel for the following years. (2) Mahendra Mills Ltd. v. P.B. Desai, AAC [1975] 99 ITR 135 (SC) wherein it was held that AAC was justified in rectifying his order to scale down the figure of opening stock to the level of the preceding year's closing stock. 5. It was thus pleaded that Assessing Officer should have accepted the claim of assessee and ld. CIT(A) was wrong in upholding the order of CIT(A). 6. On the other hand, ld. DR contended that there is no assessment order framed under the provisions of section 143(1) of the Act for the year under consideration. The return of the assessee was processed under the provisions of section 143(1) of the Act. He contended that Assessing Officer did not have power to compute the income lower than the returned income under the provisions of section 143(1) unless assessee filed a revised return showing the lesser income. He, therefore, contended that ld. Assessing Officer was justified in rejecting the request of assessee and ld. CIT(A) was also right in upholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under section 156 and all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee and an intimation to this effect shall be sent to the assessee: Provided that except as otherwise provided in this subsection, the acknowledgement of the return shall be deemed to be an intimation under this sub-section where either no sum is payable by the assessee or no refund is due to him: Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made: Provided also that where the return made is in respect of the income first assessable in the assessment year commencing on the 1st day of April, 1999, such intimation may be sent at any time up to the 31st day of March, 2002." The above section is substituted with effect from 1-6-1999 by Finance Act, 1999. The analysis of the section is as under:- It enacts that where a return has been made under section 139, or in response to a notice under section 142(1),- (i) if any tax or interest is found due on the basis of such return, after adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration. Thus, in absence of power to make any adjustment in the returned income, the Assessing Officer has rightly declined to rectify the order under section 143(1). 8. Now coming to the contention of assessee that as per provisions of section 154(1)(b) the Assessing Officer can amend any intimation passed under section 143(1), we may observe that what cannot be done under section 143(1) cannot be also done by taking resort to section 154(1)(b). Making any adjustment to the returned income by way of provisions of section 154 of the Act will be amounting to do an act which cannot be done directly under the provisions of section 143(1) of the Act. The proposition of law is well-settled that what cannot be done "per directum"is not permissible to be done "per obliquum", meaning thereby whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud". This principle of law has been explained by Hon'ble Allahabad High Court in the case of Anupam Susil Garg v. CIT [2004] 265 ITR 474 as under:- "There is another aspect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that review of an order cannot be done under the grab of section 254(2) as the powers of Tribunal was regarding rectification of a mistake which is apparent from record. The Tribunal cannot do an act which was not directly permitted to be done by resorting to section 254(2). (3) CIT v. Paharpur Cooling Towers (P.) Ltd. [1996] 219 ITR 618 (SC). While discussing the powers of Settlement Commission in the said case under section 245E it was held by Hon'ble Supreme Court that penalty proceedings do not fall within the ambit of section 245E of the Act and the Commission exceeded its jurisdiction in dropping penalty proceedings for assessment years 1970-71 to 1974-75 while deciding settlement application for assessment year 1975-76 and further assuming that section 147 was available to the Commission. Thus, it was held that assessment would be reopened only for the limited purpose of spread over of addition and not as a whole so as to include the penalty proceedings more so when the concealment did not have nexus with the income disclosed and thus, what the Commission could not do directly, cannot be allowed to do indirectly. 9. Applying the above-mentioned principles we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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