9911796707
TMI Blog1996 (1) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-8-1995. Neither of the returns was processed under section 143(1)(a) by the Assessing Officer. An assessment under section 143(3) was straightway made on 30-3-1995 rejecting the claim of the assessee regarding deduction of expenditure and computing the income at Rs. 38,80,985. 3. In the opinion of the Commissioner of Income-tax, making of assessment straightway under section 143(3) without having recourse to the provisions of section 143(1)(a) was erroneous in so far as it was prejudicial to the interests of revenue. After issuing notice to the assessee, he set aside the assessment with a direction to process the return filed by the assessee under section 143(1)(a) before completing the assessment under section 143(3). 4. We have hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puting such tax or interest payable by or refundable to the assessee. These adjustments are---- (i) any arithmetical errors in the return, accounts or documents accompanying it ; (ii) allowing any claim of loss carried forward, deduction, allowance or relief, which, on the basis of the information available in such return, accounts or documents, is prima facie admissible but which is not claimed in the return; and (iii) disallowing any loss carried forward, deduction, allowance or relief claimed in the return, which, on the basis of the information available in such return, accounts of documents, is prima facie inadmissible. The purpose of sub-section (1) of section 143 is to determine the tax or interest payable by the assessee or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded under sub-section (1) exceed the amount refundable on regular assessment, the whole or the excess amount so refunded shall be deemed to be tax payable by the assessee for the purposes of the Income-tax Act. 7. Nowhere in the provisions of sub-section (3) of section 143 is it a condition precedent that the assessment cannot be made without a recourse to the provisions of section 143(1)(a). In fact, the provisions of sub-section (1) and sub-section (3) of section 143 are parallel provisions. The former sub-section is resorted to determine the tax or interest payable by the assessee or the tax refundable to the assessee, on the basis of the information available in the return and the documents accompanying such return. It has nothing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(3) and the provision to take a remedial measure to rectify such a mistake should lie elsewhere but not in setting aside the order under section 143(3). The revisionary jurisdiction of the Commissioner should be seen with reference to an error in the order under section 143(3) but not an error committed by the Assessing Officer while dealing with the return of the assessee. If the order made by the Assessing Officer under section 143(3) is not dependent upon or consequent to processing of the return under section 143(1)(a), no error therein can be alleged. We are, therefore, of the opinion that the CIT has no jurisdiction to set aside the order under section 143(3) on the ground that the return filed by the assessee should have fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of additional tax consequent to an order under section 143(3). It does not authorise to levy additional tax as a result of an order under section 143(3), nor can this provision be interpreted to mean that while making assessment under section 143(3), the Assessing Officer should have proceeded to process the return under section 143(1)(a) and levied additional tax on account of the alleged adjustments which could have been made had he processed the return under section 143(1)(a) of the I.T. Act. 10. The learned departmental representative further submitted that where penalty proceedings were not initiated before or at the time of making the assessment, the Commissioner can invoke his power under section 263(1) to set aside the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Delhi High Court in the case of J.K. D'Costa was dismissed by the Supreme Court. This contention of the learned departmental representative is, therefore, rejected. 11. In the light of our discussion, we are of the opinion that the provisions of section 143(1)(a) and the provisions of section 143(3) are independent and making of an assessment under section 143(3) is not dependent upon sending an intimation under section 143(1)(a) of the Act or the levy of additional tax in consequence thereof and, therefore, if the Assessing Officer makes an assessment under section 143(3) without first having processed the return under section 143(1)(a), there cannot be a mistake which could be equated with an error in the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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