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TMI Blog2023 (9) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... 83 - CALCUTTA HIGH COURT] once the assessment u/s 143(3) has been completed then the order passed u/s 143(1)(a) merges with the order passed u/s 143(3) of the Act. Therefore, the order passed u/s 143(1) ceased to be operative. Accordingly we hold that the order passed u/s 143(1) by CPC after the scrutiny assessment proceedings were initiated by the AO for A.Ys. 2016-17 2016-18 are not valid and liable to be set aside. Appeal of assessee allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, therefore, the order u/s 143(1) has merged with order passed u/s 143(3). The Ld. DR has relied upon the orders of the authorities below. 4. We have considered the rival submissions as well as relevant material on record. There is no dispute that for A.Ys.2016-17 & 2017-18 the AO initiated the scrutiny assessment by issuing notice u/s 143(2) on 21st July 2017 and 9th August 2018 respectively. The relevant part of the assessment order passed u/s 143(3) for A.Y.2016-17 & 2017-18 are as under: A.Y.2016-17 "This appeal was instituted on 07.04.2018 against intimation u/s. 143(1) of the Income-tax Act, 1961 dated 21.02.2018 passed by DCIT(CPC), Bengaluru for A.Y. 2016-17. Subsequently, the appeal was migrated to the National Faceless Appeals Centre in terms of Notification No. 76/2020/F.No. 370142/33/2020-TPL dated 25.09.2020 issued from the Ministry of Finance, Department of Revenue, Central Board of Direct Taxes." A.Y.2017-18 "The appeal was instituted on 09.07.2019 against the intimation u/s. 143(1) dated 31.03.2019 passed under section 143(1) of the Income Tax Act, 1961 passed by the Deputy Commissioner of Income Tax, CPC, Bengaluru for the Assessment Year 2017-18." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the writ or prohibition or certiorari would not issue against an order prohibiting an executive authority, the High Courts had power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjected, or was likely to subject, a person to lengthy proceedings and unnecessary harassment, the High Courts would issue appropriate orders or directions to prevent such consequences. The existence of such alternative remedies as appeals and reference to the High Court was not, however, always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. When the Constitution conferred on the High Courts the power to give relief it became the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief were refused without adequate reasons." 16. In this view of the matter, we are of the opinion that after issuance of notice under Section 143(2) of the Act, it is not open for the Assessing Officer to make adjustment or to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s undertaken and proceedings are initiated by issuance of notice u/s 143(2) it would be anomalous and incongruent that while such proceedings so initiated are pending, the return be processed u/s 143(1). The Hon'ble Calcutta High Court in case of CESC Ltd. vs. DCIT (supra) has also considered this issue in para 11 & 12 as under: "11. The Division Bench judgment of this Court, quoted hereinabove, answers the controversy raised before me squarely. The decision of the Apex Court noticed above, in my view, takes the matter a step further inasmuch as resorting to summary procedure under section 143(1)(a) after issuance of a notice under section 143(2) for regular assessment has been forbidden. If the Department cannot, after issuing a notice under section 143(2) for regular assessment, resort to the summary procedure under section 143(1)(a) can it not be said that the rectification of an intimation issued under the aforesaid section is also not permissible because in either case it would amount to activating section 143(1) of the Act which according to the judgment of the Apex Court is not permissible after issuance of a notice under section 143(2). 12. Regular assessment for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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