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TMI Blog2012 (11) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... any notice to the assessee whatsoever - no merit in the proceedings carried out by the Assessing Officer in this regard - appeal of assesse is allowed. In the interest of justice and in the entirety of the facts and circumstances, issue of adjudication of application moved by the assessee under section 154 of the Act vis-à-vis the claim of set off of brought forward losses for computing book profits under section 115JB of the Act and the tax thereof, restored to the file of the Assessing Officer after affording reasonable opportunity of hearing – appeal is allowed for statistical purposes. - ITA No.440/Chd/2011 & ITA No.1063/Chd/2010 - - - Dated:- 31-7-2012 - SHRI T.R. SOOD AND Ms. SUSHMA CHOWLA, JJ. Appellant by : Shri B.M.Khanna Respondent by : Shri Manjeet Singh, DR ORDER PER SUSHMA CHOWLA, J.M, : Both these appeals filed by the assessee are against the separate orders of the Commissioner of Income-tax (Appeals), dated 07.06.2010 a n d 28. 01. 2011 both relating to assessment year 2007- 08 against the separate orders passed under section 154 of the Income Tax Act, 1961 (in short 'the Act') dated 26.3.2009 and 23.6.2009. 2. Both these appeals rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid return of income the assessee had declared income from profits and gains of business at Rs.29,22,101/- and had claimed set off of brought forward losses to the tune of Rs.29,22,102/- and the gross total income was declared at nil as per computation of income being page No.7 of the return of income. Further the assessee had in the said computation i.e. Part-B-TI at page 9 of the return of income in Column No.15 had declared the deemed total income under section 115JB (6 of Schedule MAT) at Rs.12,91,896/-. Under Part B-TTI the computation of tax liability on total income is declared by the assessee in the e-return filed by it under which the tax payable on deemed total income under section 115JB (7 of Schedule MAT) was declared at nil. The tax payable on total income in item-11 of Part B-TI i.e. under the normal provisions of the Act was also declared at nil. The assessee had made a claim of Rs.53,240/- on account of TDS as per Column No.17 of Part B-TTI at page 10 of the return of income. The assessee thereafter had declared income from profits and gains of business under Schedule-BP at Rs.29,22,101/- at pages 12 and 13 of the return format. Thereafter under Schedule CYLA at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S of Rs.53,237/- was allowed to the assessee and the balance tax payable was determined at Rs.91,714/- and interest under section 234B and 234C of the Act was charged and total tax and interest was determined at Rs.1,18,027/-. IN the said order passed under section 154 of the Act the Assessing Officer further stated that demand of Rs.9,68,643/- taken to + A/c No.4. 10. Before the CIT (Appeals) the grievance of the assessee was that the rectification carried out under section 154 of the Act was both illegal and void, without serving any intimation under section 143(1) and also notice under section 154 of the Act and second grievance was that the issue being debatable was outside the purview of section 154 of the Act. 11. Meanwhile, the assessee also moved an application for rectification under section 154 of the Act dated 2.5.2009 in which it was alleged that the order under section 154 of the Act was served on 1.5.2009 and under which it is clear that intimation under section 143(1) or notice under section 154 of the Act was not considered necessary, as none has been served upon the assessee. The second plea of the assessee was that the acknowledgement of the return of income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed at Rs.53,240/-. There is no column in the said acknowledgement filed with the return of income and so called first page of the return of income for declaration of book profits, though the assessee had admittedly claimed refund of Rs.53,240/-. The Assessing Officer while processing the return of income vide noting dated 29.10.2008 had created demand of Rs.10,86,670/-. The provisions of the Act in respect of processing of the return of income by way of section 143(1) of the Act before its amendment clearly stipulate that where any tax or interest was found due on the basis of return of income after allowing adjustment of tax paid, then an intimation shall be sent to the assessee specifying the same so payable and such intimation shall be deemed to be a notice of demand issued under section 156 and the provisions of the Act shall apply accordingly. Where any refund is due on the basis of such return, the same shall be granted to the assessee and an intimation to the effect shall be sent to the assessee. It is further provided by the proviso under section 143(1) of the Act that except as provided in this sub-section, the acknowledgement of the return shall be deemed to be an intim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared nil income and nil tax payable in its return of income, but claimed refund of TDS and in case any rectification under section 154 of the Act had to be carried out to the income assessed in the hands of the assessee, the service of notice under section 154 of the Act was compulsory and in the absence of the same, we find no merit in the order passed under section 154 of the Act dated 26.3.2009. 15. The assessee had also filed rectification application dated 2.5.2009 in which it had claimed that the brought forward losses were adjusted in the MAT column automatically and further claim of the assessee was that the nil tax was payable by the assessee. The explanation of the assessee in this regard was that it was the first year of filing e - return of income and there were certain errors in the said return of income, which were beyond the control of the assessee. 16. We find from the perusal of return of income filed for the year under consideration, which is available on the assessment records of the assessee for the year under consideration, that at page 9 the particulars of computation of total income are provided in Part B-TI under which the assessee had declared incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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