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TMI Blog2013 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;"That the learned Assessing Officer is not justified in passing the order of intimation under section 143(1)(a) of the Income-tax Act subsequent to issuance of notice under section 143(2) of the Income-tax Act for regular assessment." 2. The Tribunal in its order dated December 9, 2004, observed that : "The learned counsel for the assessee has also filed before us a copy of notice under section 143(2) dated March 11, 1997,and pointed out that the intimation under section 143(1)(a) was issued on December 14,1998, i.e., after the issuance of notice under section 143(2), which is bad in law in view of the decision of the hon'ble Supreme Court in [2003] 260 ITR 84 (SC) in the case of CIT v. Gujarat Electricity Board wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of revising the return has arisen as during the course of finalization of return for the assessment year 1997-98, it transpired that the expenses totalling to Rs. 8,14,55,626 relating to and which accrued for the previous year relevant to the assessment year 1996-97, have been paid and accounted for in the subsequent year and as per the mercantile system of accounting, the same are allowable in the assessment year 1996-97 and, as such, the claim thereof has been made in the revised return.The revised return was processed under section 143(1)(a) of the Act on December 14,1998,on a total income of Rs. 9,86,85,952 by treating the status of the assessee as an association of persons under section 185 and also making certain prima facie adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onverse is not available ; a regular assess-ment proceeding having been commenced under section 143(2), there is no need for a summary proceeding under section 143(1)(a) of the Act. 8. Learned counsel also submits that the order passed by the Income-tax Appellate Tribunal is erroneous for the reason that the Tribunal has admitted the additional ground raised by the assessee on the plea of the same being purely legal and allowing the appeal in favour of the assessee on the basis of the same very additional ground. The Tribunal has decided the additional ground on the merits for the first time by itself, which is not desirable as per the ratio laid down in the case of CIT v. Tollaram Hassomal [2008] 298 ITR 22 (MP). 9.He further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 12. According to the learned counsel for the assessee, as per the scheme of the assessment with effect from April 1,1989, summary assessment has been provided under section 143(1)(a) of the Act, wherein returns are processed and prima facie adjustment can be made for working out the tax liability, if any. Such a prima facie adjustment are strictly circumscribed by section 143(1)(a). For this purpose, he relied on the ratio laid down in the following cases : I. Gujarat Poly-Avx Electronics Ltd. v. Deputy CIT (Assessment) reported in [1996] 222 ITR 140 (Guj) ; II. Lakhanpal National Ltd. v. Deputy CIT reported in [1996] 222 ITR 151 (Guj) ; and III. Peico Electronics and Electricals Ltd. v. Deputy CIT reported in [1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(2) was issued for the original return of income. Therefore, the ratio laid down in the aforesaid case is distinguishable from the facts of the case in hand. The revised return was filed by the respondent on March 30, 1998, i.e., after the receipt of notice under section 143(2) dated March 11, 1997. Thus, the Assessing Officer has rightly made the necessary adjustment on the basis of the revised return. The said notice under section 143(2), which was issued prior to the filing of the revised return by the assessee, cannot bar the Assessing Officer from processing the said revised return under section 143(1)(a) of the Act. 17.Moreover, the Tribunal while admitting the so-called additional ground has not discussed the full facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax (Appeals) had jurisdiction to examine the said additional ground, had it been raised before him in appeal even in the first round. Thus, we cannot subscribe to the approach and the manner in which the Tribunal allowed the assessee to raise the additional ground in appeal for the first time and deciding the appeal on this ground by not only setting aside the order of the Commissioner of Income-tax (Appeals) but even proceeding to set aside the order of the Assessing Officer. Such approach is neither legal nor proper. It only exhibits the anxiety of the Tribunal to decide the appeal on the merits even on the point which did not arise for decision out of the order of the Commissioner of Income-tax (Appeals). In other words, instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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