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TMI Blog2017 (1) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Income Tax Act, 1961 on 16/11/2014 disallowing the claim of expenses for the reason that petitioner does not have registration under Section 12A of the Act. Petitioner was assessed to a liability of Rs. 2,85,190/-. Petitioner filed an objection to the proposed assessment. Thereafter no response was received. Petitioner later revised its return on 3/2/2015. Ext.P9 is the revised return. No action was taken by the revenue based on the revised return. Petitioner thereafter received a reminder dated 19/2/2015 for non payment of the outstanding amount of Rs. 2,85,190/-. Petitioner sent a reply requesting to consider his revised return. Since there was no response, he filed a revision petition under Section 264 of the Act (Ext.P12). It was heard by the Principal Commissioner of Income Tax Kochi on 23/3/2016 and by Ext.P1 order dated 28/3/2016, he declined to exercise the revisional authority. 3. The main contention urged by the petitioner is that revenue has assessed the petitioner to tax without affording him an opportunity of being heard. The assessing officer has not responded to his claim to consider the clarifications on the income and expenditure. He is prejudiced on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. It was held that the revised return submitted by the petitioner was within time and therefore he was entitled for refund of the TDS already deposited with the Department. 8. Yet another judgment relied upon is Assam Roofing Ltd. v. Commissioner of Income Tax [2014 (43) Taxman.com 316 (Gauhati)]. In this case, placing reliance upon judgment in Parekh Brothers (supra), the High Court held that intimation passed under Section 143(1) by the assessing authority is equally an order which can be questioned and can be made subject matter of revision under Section 264 before the Commissioner for deciding the issues raised therein by the assessee on merits. 9. The Delhi High Court in Vijay Gupta. v. Commissioner of Income Tax [2016 (238) Taxman 505 (Delhi)], held that intimation under Section 143(1) is regarded as an order for the purpose of Section 264 and therefore an application under Section 264 is maintainable against such an intimation. 10. In Larsen and Toubr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 between 1st June, 94 and 31/5/1999 and under Section 264 between 1st October, 91 and 31st May 1999. It is held that the expressions "intimation" and "assessment order" have been used at different places. 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 tax payer". It is held that in the scheme of things, the intimation under Section 143(1)(a) cannot be treated to be an order of assessment. 13. Coming back to the facts, Ext.P7 is the intimation received by the petitioner under Section 143(1) of the Act. Pursuant to Ext.P7, petitioner submitted Ext.P8 reply on 11/12/2014 indicating that receipt of Rs. 7,63,800/- consists of voluntary contribution of Rs. 7,41,300/- and its interest. The sum of Rs. 7,41,300/- was received towards specific projects or activities and not a blanket contribution against which the petitioner had incurred the expenditure as directed by the donor. The relevant details were also furnished. Hence, the petitioner sought for deduction of Rs. 4,60,617/- on the premise that the said expenditure was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order by the assessing authority for the purpose of Section 264. The Division Bench was considering the question relating to assessment year 1995-96. The change in the statutory provision had been explained by the Apex Court in Rajesh Jhaveri Stock Brokers P.Ltd (supra) wherein it is clearly indicated that an intimation sent to the assessee under Section 143(1a) was deemed to be an order for the purpose of Section 264 from 1st October 1991 to 31st May 1999. The Apex Court was in fact considering the question relating to assessment year 2001-02. It was held at paras 12 and 13 as under:- "12. What were permissible under the first proviso to section 143(1)(a) to be adjusted were, (i) only apparent arithmetical errors in the return, accounts or documents accompanying the return, (ii) loss carried forward, deduction allowance or relief, which was prima facie admissible on the basis of information available in the return but not claimed in the return and similarly (iii) those claims which were on the basis of the information available in the return, prima facie inadmissible, were to be rectified/allowed/disallowed. What was permissible was correction of errors apparent on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted 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, to 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 tax payer. In the scheme of things, as noted above, the intimation under section 143(I)(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 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction under Section 35B. 17. The argument is that independent of the notice issued under Section 143(1)(a), if there is failure on the part of the petitioner in making a claim for deduction, whether it is possible for the Commissioner to grant one more opportunity in the matter. It is settled law that the revisional powers are very wide. Petitioner is now faced with a demand which according to the petitioner is liable to be reduced on specific reasons. In Parekh Brothers (supra), this Court held that even if no such claim has been made earlier, such a claim can be entertained by the Commissioner under Section 264. Viewed in that angle, I am of the view that though not as a challenge to Section 143(1) notice, when the petitioner has filed a revised return and has sought for interference by the Commissioner, necessarily the claim has to be considered in accordance with law. 18. In the result, I am of the view that taking cue from Parekh Brothers (supra), the Commissioner will be justified in considering the claim for deduction by the petitioner in accordance with law under Section 264 of the Act. Accordingly, this writ petition is disposed of as under:- (i) Ext.P1 is set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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