9911796707
TMI Blog1997 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Assessing officer assessed the total income of the assessee at Rs. 9,02,950 by allowing expenditure of Rs. 2,53,090 from the gross total income of Rs. 11,56,042. Additional tax of Rs. 90,452 was also raised in addition to the demand of tax and interest made in the adjustment as mentioned above. 3. The assessee filed an appeal before the CIT(Appeals). The CIT(Appeals), however, after making detailed discussions of the matter held that an appeal against an adjustment made under section 143(1)(a) was not maintainable. Accordingly, he dismissed the appeal. 4. The assessee has come up in further appeal before us against the aforesaid order of the CIT(Appeals). Almost the same arguments as put forward before the CIT(Appeals), have been taken up before us also. Firstly, it is contended by the learned counsel for the assessee that an intimation in respect of adjustment disallowing the claim of the assessee towards exemption and creating huge tax demand thereby itself constitutes an assessment inasmuch as the total income of the assessee was determined in a manner other than as disclosed by the assessee in the return of income filed by it and demand of tax, interest and additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a notice under section 156. That by itself, however, does not mean that the intimation becomes an order itself for the purpose of the Income-tax Act. Section 156 certainly provides that the notice of demand is to be issued whenever any tax, interest, penalty, etc., is payable in consequence of an order passed under the Income-tax Act. The section, however, never says that a notice of demand cannot be issued in a case where no such order is passed under the Act. Hence, it is not possible for us to accept the contention of the assessee that simply because an intimation under section 143(1)(a) is deemed to be a notice under section 156, the intimation itself partakes of the character of an order under the Income-tax Act. 7. The learned counsel for the assessee has also brought our notice to the definition of ' order ' as per Law Lexicon. According to the same, an ' order ' as a noun has been held equivalent or synonymous with ' decision '. The learned counsel for the assessee has argued in this connection that since the intimation is certainly of the nature of a decision arrived at by the Assessing Officer, it must be considered to be an order also. We are unable to agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case cannot be stretched to the extent to consider an intimation under section 143(1)(a) also as an order. Thereafter, the learned counsel for the assessee has made strong efforts to argue that an intimation under section 143(1)(a) is appealable by relying on the following decisions of Tribunal : Rajiv R. Paonaskar v. Third ITO [1992] 40 ITD 581 (Bom). Venkatesa Vilas v. ITO [1983] 37 CTR (Trib) 10 (Mad.). In both these cases, the Tribunal merely held that assessments made under section 143(1) under the provisions of the Income-tax Act prior to the amendment with effect from 1-4-1989 are appealable. There cannot be any doubt about the fact that section 143(1) prior to the amendment with affect from 1-4-1989 envisaged assessments made under that sub-section and, hence, an order under section 143(1) is certainly an assessment order by itself in the instant case, we have already held that an intimation under section 143(1)(a) is not even an order, not to speak of being an assessment order. Hence, these two decisions holding that assessment orders made under section 143(1), prior to the amendment are appealable, would not at all apply to the present case. 8. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned DR has relied on the judgment of Allahabad High Court in the case of Indo-Gulf Fertilizers Chemicals Corpn. Ltd. v. Union of India [1992] 195 ITR 485/64 Taxman 96 (All.). 10. There cannot be any doubt about the fact that unless a right to appeal is conferred by the relevant Statute, the assessee cannot appeal against a particular action of an Executive. It is also an undisputable fact that an intimation under section 143(1)(a) has not been mentioned as appealable in section 246. The learned CIT (Appeals) has made detailed discussions in his appellate order by referring to the Memorandum explaining the provisions of the Direct Taxes Law (Amendment) Acts, 1987 and 1989 and as detailed in Circular No. 549. According to the said circular, if an ITO makes an adjustment which is not of the nature of prima facie adjustment, his action in that regard being in contravention of the provisions of the Act would clearly be a mistake. The circular states clearly that in such circumstances, the assessee can make an application under section 154 for rectification of the relevant mistake. Any refusal to carry on the rectification as prayed for by the assessee would clearly be appealable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
