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TMI Blog2015 (7) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... an issue which is debatable in nature, this Tribunal is of the considered opinion that the Assessing Officer cannot express any opinion in a proceeding under Section 143(1) of the Act. Therefore, this Tribunal is of the considered opinion that the Assessing Officer has rightly reopened the assessment by issuing a notice under Section 148 of the Act. - Decided against assessee. Business of the assessee is letting out of the properties - Held that:- No material is available on record to suggest that the assessee is carrying on the business of letting out of the properties nor any material available on record with regard to nature of property which was let out by the assessee and the purpose for which it was let out. Therefore, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the Assessing Officer in the light of the judgment of the Apex Court in Chennai Properties & Investments Ltd. (2015 (5) TMI 46 - SUPREME COURT). - Decided in favour of assessee for statistical purposes. - ITA No.2145/Mds/2011 - - - Dated:- 26-6-2015 - Shri N.R.S. Ganesan and Shri A. Mohan Alankamony, JJ. For the Petitioner : Shri T. Vasudevan, Advocate For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would not be income from business but would be assessed as income from house property. The Apex Court, after considering its earlier judgment in Karanpura Development Co. Ltd. v. CIT (44 ITR 362), found that each case has to be decided from businessman s point of view to find out whether letting was done as a business or exploitation of his property as owner. A commercial asset is only an asset used in a business and nothing else. The Apex Court further found that the rental income received by the assessee has to be assessed as income from business. Therefore, according to the Ld. counsel, even on merit, the assessee has a case. On a query from the Bench what is the business of the assessee, whether the property was let out in the course of its business or it was let out as an owner? The Ld.counsel submitted that the matter may be remitted back to the file of the Assessing Officer for reconsideration. 3. On the contrary, Shri N. Madhavan, the Ld. Departmental Representative, submitted that the assessee filed the return of income and the same was processed under Section 143(1) of the Act. According to the Ld. D.R., the Assessing Officer has not expressed any view. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax and interest, if any, computed under clause (b) by any tax deducted at source, any tax collected at source, any advance tax paid, any relief allowable under an agreement under section 90 or section 90A, or any relief allowable under section 91, any rebate allowable under Part A of Chapter VIII, any tax paid on selfassessment and any amount paid otherwise by way of tax or interest ; (d) an intimation shall be prepared or generated and sent to the assessee specifying the sum determined to be payable by, or the amount of refund due to, the assessee under clause (c) ; and (e) the amount of refund due to the assessee in pursuance of the determination under clause (c) shall be granted to the assessee : Provided that an intimation shall also be sent to the assessee in a case where the loss declared in the return by the assessee is adjusted but no tax or interest is payable by, or no refund is due to, him : Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made. Explanation - For the purposes of this sub-section,- (a) 'an incorrect cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989, and March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between April 1, 1998, and May 31, 1999, sending of an intimation under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the word intimation as substituted for assessment that two different con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J.) in Apogee International Limited v. Union of India [1996] 220 ITR 248 (Delhi). It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them ? The reply is an emphatic no . The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opini ..... 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