Rc/83/1998 Of Commissioner Of Income Tax Hyd v. M/S Indira Plastic (P) Ltd

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLAR.C.NO.83 OF 1998 ORDER: (Per the Hon’ble Sri Justice V.V.S.Rao) The Income Tax Appellate Tribunal Hyderabad Bench ‘A’,Hyderabad, referred the following two questions for opinion of thisCourt at the instance of the Revenue under Section 256(1) of theIncome Tax Act, 1961 (“the Act” for brevity). 1.Whether on the facts and in the circumstances of the case,the ITAT is justified in treating the intimation u/s.143(1)(a) asnon-est and holding that the assessing officer cannot rectifythe mistake apparent from record u/s.154?the ITAT is justified in treating the intimation u/s.143(1)(a) asnon-est and holding that the assessing officer cannot rectifythe mistake apparent from record u/s.154? 2.Whether on the facts and in the circumstances of the case,order u/s.154 can be treated as intimation u/s.143(1)(a) readwith Section 292B, when it is in substance and effect inconformity with or according to the intent and purpose of theI.A. Act, 1961, particularly when the disallowance was basedon the accounts and documents accompanying the return ofincome only?order u/s.154 can be treated as intimation u/s.143(1)(a) readwith Section 292B, when it is in substance and effect inconformity with or according to the intent and purpose of theI.A. Act, 1961, particularly when the disallowance was basedon the accounts and documents accompanying the return ofincome only? The respondent (hereafter, the assessee) filed return of-income for the assessment year 198990.The same was processedunder Section 143(1)(a) of the Act and the assessing officer sent anintimation dated 22.03.1990.While doing so, the direction underSection 48(2) of the Act was not given while computing the capitalloss.Subsequently, in purported exercise of power under Section154 of the Act, the assessing officer passed an order dated-19.03.1992 reducing the capital loss from Rs.2,16,000/ toRs.1,44,200/-.Aggrieved thereby, the assessee went in appealbefore the CIT(A).The same was dismissed.The assessee was,however, successful before the appellate Tribunal.By order dated29.10.1996, the assessee’s appeal was allowed holding that therectificatory order under Section 154 of the Act to modify intimationunder Section 143(1)(a) of the Act is without jurisdiction.Thereuponthe Revenue sought the two questions referred to hereinabove.We have heard the Junior Standing Counsel for Income Tax. Insofar as the first question is concerned, today we haveconsidered similar question in R.C.No.257 of 1996 and answered thereference in favour of the assessee and against the Revenue.Accordingly, in this R.C. also, we answer the first question inaffirmative in favour of the assessee and against the Revenue.Insofar as the second question is concerned, a perusal of the orderof the appellate Tribunal as well as the application under Section256(1) of the Act being R.A.No.12/Hyd/97 would show that no suchquestion was raised and therefore, reference of the question is notproper.We decline to answer question No.2. In the result, the reference is answered as above, without anyorder as to costs and the Reference Case shall stand disposed ofaccordingly. _______________ (V.V.S.RAO, J) 28[th] December 2011RRB ____________________ (B.N.RAO NALLA, J)