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TMI Blog2007 (12) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act relating to the assessment procedure ?" 3. The assessee is a private limited company deriving income from contract work. It had filed its return on October 4, 1990, declaring an income of Rs. 35,470. As per the statement of case, the assessment was completed by the Assessing Officer under section 143(1) (a) of the Act on December 12, 1990. Subsequently, the Commissioner of Income-tax noticed that the assessee was not maintaining day-to-day record of consumption of raw material and work-in-progress, etc. He, therefore, observed that the provisions of section 145(1) of the Act were attracted in the case of the assessee and the income was liable to be computed by applying the net profit rate of 10 per cent. on the total receipts without allowing further deduction on account of expenses or depreciation, etc. The Commissioner of Income-tax, Jalandhar, exercised his revisional jurisdiction under section 263 of the Act and after affording opportunity of being heard to the assessee, vide order dated March 10, 1993, held that the assessment framed on December 12, 1990, under section 143(1) (a) of the Act was erroneous and prejudicial to the interests of the Revenue. He ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, inasmuch as, the intimation that a certain amount is found due and payable by the assessee or the assessee was entitled to return of certain amount paid as tax would definitely be an order under which the tax demand is quantified or the amount of the tax to be determined. In such a case, no further proceedings would be necessary and the return is to be accepted under section 143(1)(a) of the Act. The issuance of intimation also partakes of the character of a decision, inasmuch as, the return filed is accepted and no amount of tax is recoverable or refundable or vice versa. According to learned counsel, such an intimation and acknowledgment are definitely an order. Mr. Sanjiv Bansal, learned counsel for the Revenue, wanted us to read the expression "order" used in section 263 of the Act disinjunctively to the expression "proceedings" so as to conclude that the expression "order" would take into its view even an intimation sent under section 143(1) (a) of the Act. In support of his submission, learned counsel has placed reliance on various judgments, namely, CIT v. Anderson Marine and Sons P. Ltd. [2004] 266 ITR 694 (Bom); CIT v. Smt. R. G. Umaranee [2003] 262 ITR 507 (M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a decision at the hands of an Assessing Officer. According to Shorter Oxford Dictionary, the word "proceeding" means "the formal manner in which legal proceedings are conducted". Likewise, in Black's Law Dictionary (with pronunciations) Sixth edition, the expression "proceeding" has been defined to mean "any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorised by law) in which, pursuant to law, testimony can be compelled to be given". If there is no proceeding then there cannot be any order. He has insisted that once there is no order then the act of issuing intimation must be construed merely a ministerial act because it does not precede from any proceedings culminating into passing an order. He has then submitted that the principle of contemporanea expositio must be applied and this court must hold that the power of revision cannot be exercised in respect of an intimation. According to learned counsel, the rule of construction by reference to contemporanea expositio is a well established rule for interpreting a provision of a statute by reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by learned counsel for the parties and are of the view that the question of law referred to for our opinion has to be answered in favour of the assessee and against the Revenue. We are of the considered view that the omission of the expression "intimation" from section 263 of the Act establishes the intention of Parliament to limit the power of revision of a Commissioner of Income-tax only to cases where an order has been passed. A plain reading of section 263 of the Act would alone be sufficient to reach the aforementioned conclusion. A perusal of section 263 of the Act brings out that the Legislature never intended to clothe the Commissioner with the powers of revision in summary cases where intimation and acknowledgment had been sent to the assessee after filing of the return. In that regard reliance may be placed on a recent judgment of the hon'ble Supreme Court in the case of Assistant CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500. Two expressions "assessment" and "intimation" have been interpreted by their Lordships as used in section 143(1) (a) of the Act. The aforementioned exposition of law has flowed from the amendment substituting the word "intimatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, and May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions 'intimation' and 'assessment order' have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes 'the computation of income', sometimes 'the determination of the amount of tax payable' and sometimes 'the whole procedure laid down in the Act for imposing liability upon the taxpayer'. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(1)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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