Surinder Arjun v. The Assistant Commissioner Of Incometax, Circle 1, Amritsar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Income-tax Appeal No. 136 of 2010Date of Decision: July 7, 2010 Surinder Arjun --- Appellant Versus The Assistant Commissioner of IncomeTax, Circle 1, Amritsar --- Respondent CORAM:HON’BLE MR. JUSTICE ADARSH KUMAR GOELHON’BLE MR. JUSTICE AJAY KUMAR MITTAL *** PRESENT: Mr. N.L. Sharda, Advocatefor the appellant. --- Ajay Kumar Mittal, J. In this appeal filed under Section 260A of the Income-taxAct, 1961 (for short “the Act”) against the order of the Income TaxAppellate Tribunal, Amritsar Bench, Amritsar, (in short “the Tribunal”)in ITA No. 193/ASR/2009, dated 30.10.2009, for the assessmentyear 2005-2006, the assessee has claimed that the followingsubstantial questions of law arise for consideration of this Court: 1-Whether in the facts and circumstances of this case the findings of CIT(A) and ITAT that assessment framed byA.O. is in the spirit of Section 143(3) and Section 144 hasbeen wrongly inadvertently mentioned by the A.O., is perverse on the ground when interest under Section234A is calculated by A.O. as per assessment order inthe spirit of 144 of Income Tax Act, and it is admitted byA.O. that assessee had not filed return of income? 2. Whether in the facts and circumstances of this casefinding of the CIT(A) and ITAT that quoting of wrongsection will not materially affect the findings given in theassessment order, particularly, when the replies ofappellant have been taken into account is legally justifiedon the ground when reply of appellant dated 24.12.2007already on record was not taken into account by A.O.?” The assessing officer issued a notice under Section 142(1) of the Act on 5.4.2006 requiring the assessee-appellant to filereturn of income for the assessment year 2005-06 but no return wasfiled. Thereafter, the assessment for the assessment year 2005-2006, in the case of the appellant was completed by the AssessingOfficer by invoking the provisions of Section 144 of the Act at anincome of Rs.55,65,822/-. The Commissioner of Income-tax(Appeals), Jammu Headquarters, Amritsar, [in short “the CIT(A)”]vide order dated 2.3.2009, partly allowed the appeal carried by theassessee. The Tribunal also partly accepted the pleas of theassessee, vide order dated 30.10.2009. This is how the assesseehas preferred the present appeal. We have heard learned counsel for the appellant andgone through the record. Learned counsel for the appellant-assessee submittedthat the assessing officer was not justified in framing the assessmentunder Section 144 of the Act and the appellate authorities havewrongly concluded that the assessment was framed under Section143(3) and mentioning of Section 144 was inadvertently done.Learned counsel urged that this finding is erroneous on the groundthat interest under Section 234A has been calculated by theassessing officer by taking the assessment order to be under Section144 of the Act. We do not find any merit in the contention of learned counsel for the appellant. Similar argument raised by the assessee before CIT(A) was rejected and in para 2.3 while rejecting the same it was recordedas under: “I have gone through the assessment order and thesubmission of the learned counsel for the appellant. Onthe first page of the assessment order, the section underwhich the4 assessment was being made is mentioned assection 144, but in the body of the order, the A.O. hasnowhere mentioned as to whether any why he wasframing assessment u/s 144 of the Income Tax Act, 1961.It is also surprising to note that the appellant has notmade compliance on some occasions but at the sametime it is noticed that he has filed reply to the variousqueries made by the Assessing Officer and the replies ofthe appellant have been more or less considered by theA.O. in the assessment order. In my considered view the was rejected and in para 2.3 while rejecting the same it was recordedas under: “I have gone through the assessment order and thesubmission of the learned counsel for the appellant. Onthe first page of the assessment order, the section underwhich the4 assessment was being made is mentioned assection 144, but in the body of the order, the A.O. hasnowhere mentioned as to whether any why he wasframing assessment u/s 144 of the Income Tax Act, 1961.It is also surprising to note that the appellant has notmade compliance on some occasions but at the sametime it is noticed that he has filed reply to the variousqueries made by the Assessing Officer and the replies ofthe appellant have been more or less considered by theA.O. in the assessment order. In my considered view the assessment framed by A.O. is in the spirit of section 143(3) and section 144 has been wrongly/inadvertentlymentioned by the A.O. Further, these are proceduralsections and quoting of wrong section will not materiallyaffect the findings given in the assessment order,particularly, when the replies of the appellant have beentaken into account. Hence, there is no substance in pleaof the appellant that the order passed u/s 144 was illegaland the ground of appeal taken in this regard isdismissed. The addition as made in the order will bediscussed in succeeding paragraphs while adjudicatingother grounds of appeals.” This was affirmed by the Tribunal in its order dated 30.10.2009. On a specific query being put to the counsel for theappellant as to what prejudice was caused to the appellant or whatrequirement of law had not been followed while framing theassessment which has been held to be under Section 143(3) of theAct, the counsel could not show any prejudice having been caused tothe appellant nor could point out any essential requirement, whichdeserved to be taken care of, had not been followed by theAssessing Officer. In view of the above, we are of the opinion that nosubstantial questions claimed by the appellant arise in this appeal.Accordingly, there is no merit in the appeal and the same isconsequently dismissed. July 7, 2010*rkmalik* (AJAY KUMAR MITTAL) JUDGE (ADARSH KUMAR GOEL) JUDGE