9911796707
TMI Blog1994 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law as CIT assumed jurisdiction on said alleged order passed under section 143(1) which was never served on the appellant and remained on file of Deptt. This order in view of decision of Hon'ble Madhya Pradesh High Court reported as Smt. Jijeebai Shinde v. CGT [1986] 157 ITR 122 is not an order for taking action under section 263 and now it is time barred and action taken under section 263 is wrong. 3. That on facts and in circumstances of the case the order passed under section 263 is illegal and wrong as no part of income has escaped assessment. The results are supported with books of account which were produced before the CIT at the time of hearing under section 263 and no defect was pointed out. The case relied upon by the CIT ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, it was submitted by Sh. Mehra that there was no escapement of income as the trading results declared by the assessee were supported by books of accounts, which were properly audited and the results declared were in accordance with those books of accounts. It was submitted that reliance of the Ld. CIT on the decision of Hon'ble Supreme Court in the case of Brij Bhushan Lal Parduman Kumar v. CIT [1978] 115 ITR 524 is misplaced as in the said decision the Hon'ble Supreme Court never held that a net profit rate of 10% can be applied to the case of Contractors. It was submitted that the assessee-company has maintained complete books of accounts and supporting vouchers and the books of accounts are audited by a Chartered Accountant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in directing the Assessing Officer to make fresh assessment after applying' a net profit rate of 10% on the contract receipts. 4.2 Sh. Mehra further submitted that the assessee filed return on income on 4-10-1990 declaring income of Rs. 35,470 and along with the return of income a certificate of Tax Deduction at Source amounting to Rs. 77,049 was filed and accordingly the assessee was entitled to refund of Rs. 5,740 which was not issued to the assessee. It was submitted that the assessee filed letter dated 12-3-1992 and then dated 2-7-1992, copies of which were given to us at pages 16 & 17 of the paper book, requesting for refund, which was never granted to the assessee nor the assessment order was served on the assessee. Accordingly, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was cancelled by the CIT under section 263. As such, it was submitted that reference of the assessee to the decision of Hon'ble Madhya Pradesh High Court in the case of Smt. Jijeebai Shinde was not applicable to the facts of the present case as in view of the statutory provisions intimation under section 143(1) was not required to be served on the assessee if the assessment order did not result into a demand. On merits, it was submitted that the Assessing Officer having accepted the return without properly verifying the same and since the net profit declared by the assessee vis-a-vis receipts from contract was found to be very low, the CIT was justified in holding that the assessment order passed without making proper enquiries was er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed under section 143(1) on 12-12-1990. 6.2 The question as to whether the order passed under section 143(1) was an assessment order or an intimation only is not very material, because if it is an intimation only and not an order then the Commissioner cannot exercise jurisdiction under section 263 because section 263 can be invoked only in setting aside an order passed by the Assessing Officer, which is considered to be erroneous and prejudicial to the interest of revenue. Accordingly, if we accept the submissions of Sh. Kanwal, Ld. DR that it was only an intimation then section 263 could not be invoked by the CIT and if it is in fact an order passed under section 143(1) it has to be served on the party concerned to become effective and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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