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TMI Blog2007 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... debts Rs. 13,70,72,460 (ii) Difference of provisions for gratuity and actually paid Rs. 1,54,420 (iii) Disallowance under section 43B Rs. 85,31,000 ---------------- Rs. 14,57,57,880 ---------------- Subsequently, the case was selected for scrutiny and notice under section 143(2) dated 19-8-1998 was served upon the assessee. After the issue of notice under section 143(2), the assessee moved an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoning given by the Assessing Officer in rejecting the application of the assessee while the Learned Counsel for the assessee has reiterated the stand taken by the assessee before the Learned CIT(A). We have already narrated the same in detail and, therefore, the same need not be repeated. 5. Rival submissions of the parties have been considered carefully. The question for our consideration is whether intimation issued under section 143(1)(a) can be amended under section 154 on the basis of application moved by the assessee after the issue of notice under section 143(2) of the Act. There is no dispute that such intimation falls within the scope of rectification under section 154 of the Act. Such rectification can be made either suo motu by the Assessing Officer after issue of notice under section 154(3) of the Act or on the basis of the application moved by the assessee. There can't be any dispute to the legal position that so long as any order/the intimation is in existence, the same can be rectified unless the context/legislative intent otherwise require. In this legal background, let us consider whether the decisions of the High Courts relied upon by the Assessing Officer help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after making the adjustment, section 154(1)(b) refers to amendment in the intimation sent by the authority under section 143(1) and the powers are conferred to rectify any mistake which is apparent from the record and not otherwise. Thus, after rectifying the mistake, the order would remain an order under section 143(1)(a) of the Act, and in view of the language, it would be open for the Assessing Officer to issue notice under section 143(2) of the Act even thereafter to the assessee for making assessment under sub-section (3) of section 143 and in that case, he will have to complete the assessment as laid down under sub-section (3) of section 143. We have taken the view that once notice is issued under section 143(2), the Assessing Officer has to complete the assessment under section 143(3) in our decision rendered in Special Civil Application No. 425 of 1996 - Gujarat Poly-AXV Electronics Ltd v. Dy. CIT (Assessment) [1996] 222 ITR 140, decided by us on 4/5-7-1996, and, therefore, we do not discuss in detail about the same in this judgment. If the Assessing Officer would have rectified the order with the aid of section 154(1)(b) of the Act, even then certainly he could have exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. So long as it is not quashed or cancelled by Courts/Appellate Authorities, it would always remain in force. That being the legal position, such intimation would always be amenable to rectification where a mistake apparent from record has been committed by the Assessing Officer. This view is also fortified by the provisions of clause (b) of sub-section (1A) of section 143 which provides that where, as a result of orders mentioned therein including section 154, the amount on which additional tax is payable under clause (a) of section 143(1A) is increased or decreased then the additional tax so payable shall also be increased or decreased accordingly. It is therefore, clear that intimation under section 143(1)(a) can be amended under section 154 at any point of time within the period of limitation. The powers of the Assessing Officer are therefore unfettered except where the context otherwise requires. 10. The judgment of the Hon'ble Gujarat High Court puts a fetter on the power of Assessing Officer under section 154 considering the scheme of assessment under section 143 to the extent the mistake is curable under section 143(3) of the Act. The logic behind the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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