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TMI Blog2012 (5) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 Total : 1754357" 2. With regard to the first two adjustments, we do not think that these are prima facie adjustments which could have been made by the Assessing Officer in exercise of power under Section 143(1)(a) of the Act. The limited power and jurisdiction of the Assessing Officer to make the said adjustment was elucidated and explained by this Cour0t in the case of SRF Charitable Trust v. UOI and others, 1992 (193) ITR 95 (Del), as. "143(1)(a). Where a return has been made under section 139, or in response to a notice under subsection (1) of section 142,- (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid and any amount paid otherwise by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce or relief claimed is prima facie inadmissible. The conclusion that the claim of the assessee is inadmissible must, in other words, flow from the return as filed. No power is given to the Income-tax Officer to disallow a claim for the reason that there is no proof in support of the claim made by the assessee. In a way, the said clause (iii) of the proviso is analogous to section 154 of the Act. Where it is evident from the return as filed, along with the documents in support thereof, that a claim of the assessee is inadmissible, only then an adjustment under the said proviso can be made. If proof in support of the claim is not, furnished by an assessee, then for the lack of proof, no dis-allowance or an adjustment can be made. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and not on the basis of the past records of the assessee. Some examples of such prima facie admissibles or inadmissibles in respect of which adjustments can be made to the returned income or loss are : (i) While computing income under the head 'Salaries', standard deduction under section 16(1) is not claimed, or claimed at a figure which is less than or in excess of the permissible limit. (ii) While computing income under the head 'Income from house property', deduction for 1/6th for repairs or for a new unit under the proviso to section 23(1) is not claimed, or claimed at a figure which is less than or is in excess of the permissible amount. (iii) While computing income under the head 'Profits and gains of business or profession', d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 80M claimed at sixty per cent. Of gross dividend income instead of on net dividend income in violation of the provisions of section 80AA. It may be mentioned that the above is not an exhaustive but only an illustrative list of prima facie admissibles or inadmissibles for which adjustments can be made to the returned income or loss." The aforesaid examples contained in the circular clearly show that, for want of proof, no disallowance or adjustment can be made. It is only when a disallowance is evident from the facts on record that an adjustment can be made." 3. With regard to the third adjustment, we find that the assessee along with the return had filed details of statutory dues as on 31.3.1989. The assessee had also filed details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 84. Examining the purport of the first proviso of Section 43 B in Allied Motors (P) Ltd. v. CIT, 1997 (224) ITR 677 (SC), it has been held by the Supreme Court that the first proviso to Section 43B has to be treated as retrospective and should be read as a part of the Act with effect from 1.4.1984 itself. The Supreme Court observed that the amendment would not serve its objective unless it is construed as retrospective. Without first proviso, and explanation 2 would not obviate the hardship of Section 43B. The proviso supplies an obvious omission. 5. In view of the aforesaid position, the third addition also cannot be justified and has to be deleted on merits itself. 6. In view of the aforesaid discussion, the present writ petition is all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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