1994 (9) TMI 23 - HC - Income Tax

Assessment Notice, Debatable Issue, Foreign Exchange, Rectification Of Mistakes, Writ Petition

Summary

Issues involved:

1. Status of an intimation u/s 143(1)(a) of the Income-tax Act, 1961.
2. Scope of the power of an Assessing Officer u/s 154 and 143(1)(a) of the Act.

Issue 1: Status of intimation u/s 143(1)(a):

The petitioner filed its return for the assessment year 1991-92, claiming a loss on fluctuation of exchange. An intimation u/s 143(1)(a) was issued, accepting the return without adjustments. The Deputy Commissioner later made a regular assessment, disallowing the claimed loss. The court held that an order u/s 143(1)(a) may or may not be followed by a regular assessment u/s 143(3), at the discretion of the Assessing Officer. The order u/s 143(1)(a) becomes final for demand or refund purposes. If a regular assessment is made under section 143(3), the 143(1)(a) order contrary to it becomes ineffective. The respondent authorities termed the intimation as provisional assessment, but it does not merge with the final assessment. Section 143(1)(b) does not support this view.

Issue 2: Scope of Assessing Officer's power u/s 154 and 143(1)(a):

Courts have held that Assessing Officer's power u/s 143(1)(a) and 154 can be exercised only when there is no dispute on fact and law. The question of allowing loss on fluctuation of exchange under section 43A when the fluctuation occurs or when payment is made is debatable. The petitioner claimed the loss on devaluation of the rupee before making payment to a foreign concern, while the Department argued that the loss can be claimed only upon payment. The court noted conflicting decisions and emphasized that the matter sought to be rectified under section 154 was pending before the Commissioner of Income-tax (Appeals), indicating a live dispute.

The court highlighted that a decision on a debatable legal point is not a mistake apparent from the record for rectification under section 154. The writ petition was allowed, setting aside the impugned notice under section 154, as the Assessing Officer was trying to correct an issue not within the purview of the original intimation under section 143(1)(a). The court emphasized that the notice under section 154 was unjustified and the Assessing Officer could not decide a debatable issue under section 143(1)(a).

In conclusion, the writ application was allowed, and the impugned notice under section 154 was set aside, along with all related proceedings. No costs were awarded, and xerox copies of the judgment were to be provided to the parties.