Appeal details
Counselvise Citation
110422514 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-10-2011
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2008-2009
Appeal Filed On
08-06-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBE R. ITA NO.1104/HYD/2011 (ASSESSMENT YEAR 2008-09) SHRI G.MUKUNDA REDDY, KADAPA. (PAN - ACVPG 7645 J) V/S INCOME - TAX OFFICER, WARD-I, KADAPA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V.RAGHURAM RESPONDENT BY : SHRI V.SRINIVAS DATE OF HEARING 15 .9.2011 DATE OF PRONOUNCEMENT 31.10.2011 O R D E R PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2008- 09, IS DIRECTED AGAINST THE ORDER OF THE COMMISSION ER OF INCOME-TAX, TIRUPATI DATED 16.3.2011 PASSED UNDER S.263 OF THE INCOME-TAX ACT 2. ASSESSEE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LIQUOR UNDER THE NAME AND STYL E OF M/S. NEW KADAPA WINES. HE HAS FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 1.8.2008, ADMITTING A NET INCOME OF RS.1 ,43,350 AND AGRICULTURAL INCOME OF RS.86,200. THE RETURN OF IN COME WAS PROCESSED UNDER S.143(1) AND THE RESULTANT REFUND OF RS.1,32, 680 WAS ISSUED TO THE ASSESSEE. 3. BY VIRTUE OF POWERS UNDER S.263 OF THE INCOME- TAX ACT, 1961, THE COMMISSIONER OF INCOME-TAX, TIRUPATI PASS ED AN ORDER OBSERVING THAT THE ASSESSEE HAS DEBITED AN AMOUNT O F RS.4,34,250 UNDER THE HEAD FREIGHT CHARGES WHICH IS VERY HIGH KEEPING IN VIEW ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 2 THE PURCHASES MADE BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. HE ALSO NOTICED THAT THE ASSESSEE H AS DEBITED RS.1,47,615 TOWARDS COMMISSION TO BOYS BUT THE EX PENDITURE CLAIMED UNDER THIS HEAD HAS NO RELEVANCE TO THE BUS INESS OF THE ASSESSEE. THE COMMISSIONER OF INCOME-TAX FURTHER N OTICED THAT THOUGH THE ASSESSEE HAS ADMITTED AGRICULTURAL INCOM E OF RS.86,200, NO AGRICULTURAL LANDS WERE SHOWN IN THE BALANCE SHEET. 4. ASSESSEE CONTENDED BEFORE THE COMMISSIONER OF INCOME- TAX THAT HE HAD TO TAKE JEEPS ON HIREE TO TRANSPORT LIQUOR PURCHASED FROM A.P. BEVERAGES CORPORATION LTD., KADAPA TO THE BUSINESS PREMISES WHICH IS 8 KMS AWAY AND IN THAT PROCESS IN CURRED EXPENDITURE OF RS.4,34,250. ASSESSEE ALSO JUSTIFIE D THE PAYMENT OF COMMISSION STATING THAT SUCH COMMISSION WAS PAID TO THE BOYS WORKING IN LODGES TO IMPROVE HIS BUSINESS IN THE CO MPETITIVE SCENARIO, AND THUS INCURRED AN AMOUNT OF RS.1,47,815 ON THAT COUNT. WITH REGARD TO AGRICULTURAL INCOME, IT WAS SUBMITTED BY THE ASSESSEE THAT THE HE OWNED 8.26 ACRES OF LAND AT KASANUR (V), SIM HADRIPURAM(M), JAMMALAMADUGU REVENUE DIVISION, KADAPA DISTRICT, IN WHICH CROPS LIKE GROUNDNUT, SUNFLOWER, BENGAL GRAM, ETC. WERE GROWN. 5. THE COMMISSIONER OF INCOME-TAX WAS NOT CONVIN CED WITH THE EXPLANATION OF THE ASSESSEE, ON THE GROUND THAT THE ASSESSEE COULD NOT FILE ANY BILLS OR VOUCHERS IN SUPPORT OF EXPEND ITURE INCURRED ON ACCOUNT OF FREIGHT AND COMMISSION PAYMENTS TO BOYS, NOR ANY EVIDENCE LIKE PATTADAR PASSBOOK ETC. IN SUPPORT OF THE LAND- HOLDING CLAIMED. HOWEVER, CONSIDERING THE FACT THAT ASSESSEE MUST HA VE INCURRED SOME EXPENDITURE ON TRANSPORTATION, THE COMMISSIONER OF INCOME-TAX LIMITED THE EXPENDITURE ON FREIGHT TO 1.5% OF THE PURCHASE VALUE, WHICH CAME TO RS.1,77,855 SIMILARLY, TAKING NOTE OF BUSINESS PRACTICES IN THE LINE OF BUSINESS OF THE ASSESSEE, HE ALLOWED COMMISSION TO BOYS TO THE ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 3 EXTENT OF 0.5% OF SALES, WHICH WORKED OUT TO RS.69, 958 IN THE ABSENCE OF ANY EVIDENCE LIKE PATTADAR PASS BOOKS, E TC. TOWARDS AGRICULTURAL HOLDINGS OF THE ASSESSEE, HE DISBELIEV ED THE AGRICULTURAL INCOME CLAIMED BY THE ASSESSEE. IN THE CIRCUMSTANC ES, THE COMMISSIONER OF INCOME-TAX WAS OF THE VIEW THAT THE ASSESSMENT MADE WAS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. ACCORDINGLY REVISING THE ASSESSMENT BY VIRTUE OF P OWERS CONFERRED UNDER S.263 OF THE ACT, PROCEEDED TO DETERMINE THE DISALLOWANCE DISALLOWANCES OF RS.,2,56,395 ON ACCOUNT OF FREIGH T CHARGES; RS.77,657 ON ACCOUNT OF COMMISSION PAYMENT TO BOYS AND WITH THE FURTHER ADDITION OF RS.86,200 ON ACCOUNT OF TREATIN G THE AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES, THE COMMISSION ER OF INCOME- TAX DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.5,65,350 BY THE ORDER DATED 16.3.2011, PASSED UNDER S.263 OF THE AC T. 6. AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF I NCOME- TAX, ASSESSEE IS IN APPEAL BEFORE US. 7. THE FIRST FOUR GROUNDS RAISED BY THE ASSESSEE I N THIS APPEAL ARE THAT THE LEARNED COMMISSIONER OF INCOME-TAX ERR ED IN ASSUMING JURISDICTION UNDER THE PROVISIONS OF S.263 OF THE I NCOME-TAX ACT, AGAINST INTIMATION UNDER S.143(1) OF THE I.T. ACT . THE LEARNED COMMISSIONER OF INCOME-TAX FAILED TO APPRECIATE THA T INTIMATION UNDER S.143(1) IS NOT AN ASSESSMENT ORDER AS HELD BY THE HONBLE SUPREME COURT AND THEREFORE, THE LEARNED COMMISSIONER OF IN COME-TAX COULD NOT HAVE ASSUMED JURISDICTION AGAINST SUCH INTIMAT ION. 8. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI A.V. RAGHURAM, SUBMITTED THAT THE COMMISSIONER OF INCOME-TAX HAS N O POWER UNDER S.263 FOR REVISION OF AN INTIMATION UNDER S.143(1), AS THE SAID INTIMATION IS NOT AN ORDER OF ASSESSMENT. HE RELI ED ON VARIOUS CASE- ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 4 LAWS, HONBLE CALCUTTA HIGH COURT IN THE CASE OF HI LTOP HOLDINGS INDIA LTD. V/S. CIT(278 ITR 501); HONBLE SUPREME COURT I N THE CASE OF ACIT V/.S. RAJESH JHAVERI STOCK BROKERS P.LTD. (291 ITR 500); AND THIRD MEMBER DECISION OF THE AGRA BENCH OF THE TRIB UNAL IN THE CASE OF VINOD KUMAR RAJ V/S. CIT GWALIOR(116 ITD 72). 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, SUPPORTED THE ORDER OF THE COMMISSIONER OF I NCOME-TAX AND PLACED RELIANCE ON THE DECISION OF IN THE CASE OF CIT V/S. ANDERSON MARINE AND SONS PVT. LTD (266 ITR 694). 10. WE HAVE HEARD BOTH THE PARTIES. FIRSTLY, ON TH E ISSUE OF JURISDICTION, THE HONBLE CALCUTTA HIGH COURT IN TH E CASE OF HILLTOP HOLDINGS INDIA LTD. (278 ITR 501) HELD AS FOLLOWS- UNDER SECTION 143(1)(A), AS IT ORIGINALLY STOOD, T HE ASSESSING OFFICER WAS REQUIRED TO MAKE A SUMMARY ASSESSMENT . AFTER THE AMENDMENT UNDER THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, EFFECTIVE FROM APRIL 1, 1989, THE SCHEME OF S UMMARY ASSESSMENT WAS OMITTED ALONGWITH THE ASSESSEES R IGHT TO OBJECT TO THE SUMMARY ASSESSMENT, AND ONLY AN INTIM ATION WAS TO BE SENT WITHOUT PREJUDICE TO SECTION 143(2) WHI CH AUTHORIZES THE ASSESSING OFFICER TO SCRUTINIZE THE RETURN AND CONSIDER ALL THE CLAIMS AND PASS AN ORDER OF ASSESS MENT UNDER SUB-SECTION (3) DEALING WITH THE ISSUES INVOLVED I N THE ASSESSMENT. THE SCHEME SHOWS THAT THE ASSESSING OFF ICER HAS TO ACCEPT THE RETURN AND THE INFORMATION FURNISHED THEREWITH WITHIN THE SCOPE OF THE PROVISO TO SECTION 143(1)(A ) VIZ., IN THE NATURE OF OBVIOUS CORRECTIONS AND NOT BEYOND. IN C ASE HE WANTED TO DIFFER HE COULD RESORT TO SECTION 143(2). AN EXPLANATION WAS INSERTED IN SECTION 143 BY THE FINANCE (NO.2) ACT, 1991, TO PROVIDE THAT AN INTIMATI9ON SE NT UNDER SUB-SECTION (1) OR SUB-SECTION (1B) SHALL BE DEEMED TO BE AN ORDER FOR THE PURPOSE OF SECTION 264. THE SAID EXPL ANATION WAS FURTHER AMENDED BY THE FINANCE ACT, 1964 TO INCLUDE SECTION 246 ALONGWITH SECTION 264. THE EFFECT OF SUCH AMEND MENT WAS THAT THE INTIMATION WAS DEEMED TO BE AN ORDER FOR T HE PURPOSE OF SECTION 246 AND 264. THE EXPLANATION DID NOT PRO VIDE THAT THE INTIMATION SHALL BE DEEMED TO BE AN ORDER WITHI N THE MEANING OF THE ACT OR FOR ALL PURPOSES OF THE ACT. IT SPECIFICALLY MENTIONED ONLY THE SAID TWO PROVISIONS. FROM THE S CHEME OF THE SECTION, IT IS CLEAR THAT THE ASSESSING OFFICE R WAS REQUIRED ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 5 ONLY TO ISSUE AN ACKNOWLEDGEMENT SLIP KNOWN AS IN TIMATION TO THE ASSESSEE. THE INFORMATION WAS IN EFFECT AN INF ORMATION GIVEN TO THE ASSESSEE ABOUT THE ACKNOWLEDGEMENT OF ACCEPTANCE OF THE RETURN AFTER MAKING PERMISSIBLE A DJUSTMENTS ACTING UPON THE RETURN FILED. THE ADJUSTMENTS PERM ISSIBLE ARE OF MINISTERIAL NATURE. THIS ENVISAGES NEITHER INIT IATION OF ANY PROCEEDINGS NOR PASSING OF ANY ORDER. POWER UNDER SECTION 263 CAN BE EXERCISED IN RELATIO N TO A PROCEEDING IN WHICH THE ASSESSING OFFICER HAD PASSE D ERRONEOUS ORDER PREJUDICIAL TO THE REVENUE. THEREFO RE, IN ORDER TO ATTRACT SECTION 263, THE FOLLOWING FOUR CONDITIO NS NEED TO BE SATISFIED VIZ. (1) THERE SHOULD BE A PROCEEDING; (2 ) THERE SHOULD BE AN ORDER PASSED BY THE ASSESSING OFFICER IN SUCH PROCEEDING; (3) SUCH ORDER SHOULD BE ERRONEOUS; (4 ) AND SUCH ORDER SHOULD BE PREJUDICIAL TO THE REVENUE. IN ORD ER TO ATTRACT SECTION 263, THE ORDER MUST BE AN ORDER PASSED BY T HE ASSESSING OFFICER IN THE PROCEEDING. A PROCEEDING IS TO BE UNDERSTOOD IN ITS COMMON ORDINARY DICTIONARY MEANIN G. THE WORD PROCEEDING HAS NOT BEEN DEFINED IN THE ACT. ACCORDING TO SHORTER OXFORD DICTIONARY, THE WORD PROCEEDING MEANS THE FORMAL MANNER IN WHICH LEGAL PROCEEDINGS ARE CONDUCTED. A PROCEEDING CAN BE SAID TO BE INITIATED AND CONDUC TED ONLY WHEN THE ASSESSING OFFICER PROCEEDS TO ASSESS THE I NCOME . SECTION 143(1)(A) DOES NOT ENVISAGE INITIATION OF A NY PROCEEDING AND THE INTIMATION IS NOT AN ORDER PASSE D IN ANY PROCEEDING TO ATTRACT SECTION 263. THE FICTION IN T HE EXPLANATION TO SECTION 143 WAS CREATED TO TREAT AN INTIMATION OR ACKNOWLEDGEMENT AS AN ORDER ONLY FOR THE PURPOSE OF SECTION 246 AND 264. EVEN IN SECTION 154, THE INTIMATION O R ACKNOWLEDGEMENT HAS NOT BEEN TREATED AS AN ORDER R ECTIFIABLE; IT IS TREATED IN ITS ORIGINAL CHARACTER AS AN INTIM ATION ALONE. THE PHRASE ALL THE PROVISIONS OF THE ACT SHALL APPLY A CCORDINGLY: QUALIFIES SECTION 156 REFERRED TO IN SECTION 143(1) (A). INASMUCH AS THE PHRASE ALL THE PROVISIONS OF THE A CT SHALL APPLY ACCORDINGLY MEANS THAT ALL THE PROVISIONS O F THE ACT AS ARE APPLICABLE IN RESPECT OF A NOTICE OF DEMAND UND ER SECTION 156 WHEN ISSUED WOULD APPLY. IT DOES NOT WIDEN THE SCOPE OF APPLICATION OF THE ACT IN ALL RESPECTS CONTRARY TO THE CONFINES CREATED BY THE AMENDMENT SUBSTITUTING SECTION 143(1 ) IN 1987. THE STATUTE HAS CREATED A DISTINCTION BETWEEN ORDER S CONTEMPLATED IN SECTIONS 263 AND 264, AND THE APPLI CATION OF ONE MUTUALLY EXCLUDES THE OTHER. THEREFORE, AN ORDE R, WHICH IS SUBJECT TO SECTION 264, CAN NEVER BE SUBJECTED TO S ECTION 263. WHEN LEGISLATURE THROUGH CLEAR EXPRESSION CREATED A FICTION TO TREAT AN INTIMATION OR ACKNOWLEDGM ENT UNDER SECTION 143(1) AS A DEEMED ORDER FOR THE PURPOSE OF SECTION 264, THE LEGISLATURE MADE ITS INTENTION CLEAR THAT SUCH INTIMATION AND ACKNOWLEDGEMENT SHALL BE OUTSIDE THE PURVIEW OF SEC TION263. SECTION 263 CAN NEVER BE ATTRACTED IN RESPECT OF AN INTIMATION OR AN ACKNOWLEDGEMENT UNDER SECTION 143(1)(A). ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 6 11. IN THE CASE OF CIT V/S. ANDERSON MARINE AND SO NS PVT. LTD., REPORTED IN 266 ITR 694, RELIED UPON BY THE L EARNED DEPARTMENTAL REPRESENTATIVE, BEFORE THE HONBLE BO MBAY HIGH COURT, THE DEPARTMENT RELIED ON THE DECISION OF THE HONBL E BOMBAY HIGH COURT IN CIT V/S. RAJ KUMAR DIPCHAND PHADE (249 ITR 520) AND OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V/S. C HIDAMBARAM CONSTRUCTION CO. (261 ITR 754). IN THE CASE OF HI LLTOP HOLDINGS INDIA LTD. V/S. CIT SUPRA, THE HONBLE CALCUTTA HIGH COUR T OBSERVED, VIDE PAGE 509 OF THE REPORTS (278 ITR), IN THE CONTEXT O F THE DECISIONS RELIED ON BEHALF OF THE REVENUE BEFORE IT, INTER-A LIA AS FOLLOWS- THE DECISION IN RAJKUMAR DIPCHAND PHADE (2001) 249 ITR 520 (BOM) DOES NOT SPELL OUT ANY REASON AS TO HOW SECTI ON 263 COULD BE APPLIED IN A CASE TO TREAT AN INTIMATION A S AN ORDER WITHIN THE MEANING OF SECTION 263. THE DECISION DE ALT WITH ASSESSMENT YEAR 1986-87 SUBJECT TO THE LAW AS IT ST OOD PRIOR TO THE 1987 AMENDMENT EFFECTIVE FROM 1989 WITH WHICH W E ARE NOW CONCERNED. IN THE SAID DECISION, THE COURT HA D NO OCCASION TO DEAL WITH THE EFFECT OF THE FICTION CRE ATED BY THE EXPLANATION TO SECTION 143. IN SMT. R.G.UMARANEE ( 2003) 262 ITR 507(MAD) ALSO, THE MADRAS HIGH COURT WAS DEALIN G WITH THE ASSESSMENT YEAR 1988-89 AND AS SUCH HAD NO OCCASION TO DEAL WITH THE IMPACT OR EFFECT OF THE FICTION CREATED B Y REASON OF THE EXPLANATION TO SECTION 143 AND AS SUCH THIS DECISIO N DOES NOT HELP US IN THE PRESENT CONTEXT. THE PRESENT CASE IS FOR ASSESSMENT YEAR 2008-09, I. E. AFTER THE 1987 AMENDMENT TO S.143(1) AND AS SUCH THE RATIO OF THE DECISION IN THE CASE OF HILLTOP HOLDINGS INDIA LTD. (278 ITR 501) I S TO BE FOLLOWED. 12. FURTHER, THERE IS A PERCEPTIBLE SHIFT AFTER C OMING INTO FORCE OF THE AMENDED PROVISIONS WITH EFFECT FROM APRIL, 1 989, IN RESPECT OF THE PROCEDURE FOR ASSESSMENT, IN AS MUCH AS THE ASS ESSING OFFICER IS NOT CALLED UPON TO PASS ANY ORDER ON THE RETURN FIL ED BY THE ASSESSEE UNDER SECTION 139 OR IN RESPONSE TO NOTICE UNDER SE CTION 142, BY VIRTUE OF THE AMENDED SECTION 143(1) OF THE ACT. WHEREAS, THE ASSESSING OFFICER HAS TO MECHANICALLY ACKNOWLEDGE OR ACCEPT T HE RETURN SO FILED, ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 7 WHICH IS THE END OF THE MATTER. IN OTHER WORDS, TH E ASSESSING OFFICER IS NOT AT ALL REQUIRED TO APPLY HIS MIND WHICH IS THE QUINTESSENCE TO CONSTITUTE AN ORDER, BUT ONLY DISCHARGES HIS MINIST ERIAL WORK OF ACKNOWLEDGING THE RETURN SO FILED AND SENDS AN INTI MATION ON THE BASIS OF SUCH RETURN FOR PAYMENT OF DEFICIT TAX OR INTERE ST OR FOR REFUND OF EXCESS AMOUNT ALREADY PAID BY THE ASSESSEE. TO DEMO NSTRATE THE DISTINCTION BETWEEN THE PROCEDURE PROVIDED FOR UND ER SECTION 143(1) AND 143(2) READ WITH SECTION 143(3), IT IS ONLY WHE N THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY CLAIM OF LOS S, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN I S INADMISSIBLE, THAT THE ASSESSING OFFICER WOULD RESORT TO PROCEDURE PRO VIDED UNDER SECTIONS 143(2) AND 143(3) AND ONLY THEREAFTER, PR OCEED TO PASS AN ORDER IN WRITING EITHER ALLOWING OR REJECTING THE CLAIM OR CLAIMS, SPECIFIED IN SUCH NOTICE AND MAKE AN ASSESSMENT DE TERMINING A TOTAL INCOME OR LOSS ACCORDINGLY AND DETERMINE THE SUM P AYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESSMENT. IT IS O NLY WHEN SUCH ORDER IS PASSED, THAT HE SAME IS AMENABLE TO BE QUESTIONE D BY THE COMMISSIONER IN EXERCISE OF POWER VESTED IN HIM UND ER SECTION 263 OF THE ACT AND NOT OTHERWISE. UNDISPUTEDLY IN THE PR ESENT CASE THE A.O. HAS RESORTED TO INTIMATION U/S. 143(1) AND HAS NOT PASSED ANY ORDER OF REGULAR ASSESSMENT 13. SIMILAR ISSUE CAME UP BEFORE THE ITAT AGRA BE NCH (THIRD MEMBER) IN THE CASE OF VINOD KUMAR RAJ V/S. CIT G WALIOR. IN THAT CASE, THE RATIO OF THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF HILLTOP HOLDINGS (SUPRA) WAS FOLLOWED. SUB SEQUENTLY, THE HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS P. LTD. (291 ITR 500) HELD AS FOLLOWS- WITH EFFECT FROM APRIL 1, 1998, THE SECOND PRIVISO TO SECTION 143(1)(A) WAS SUBSTITUTED. DURING THE PERIOD BETWEE N APRIL 1, 1998 AND MAY 31, 1999, SENDING OF AN INTIMATION WAS MANDATORY. THE LEGISLATIVE INTENT IS VERY CLEAR FRO M THE USE OF THE WORD INTIMATION AS SUBSTITUTED FOR ASSESSMEN T THAT ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 8 TWO DIFFERENT CONCEPTS EMERGE. WHILE MAKING AN ASSE SSMENT, THE ASSESSING OFFICER IS FREE TO MAKE ANY ADDITION AFTER GRANT OF OPPORTUNITY TO THE ASSESSEE. BY MAKING THE ADJUSTM ENTS UNDER THE FIRST PROVISO TO SECTION 143(1)(A) NO ADDITION WHICH IS IMPERMISSIBLE BY THE INFORM ATION GIVEN IN THE RETURN COULD BE MADE BY THE ASSESSING OFFICER. THE INTIMATION UNDE R SECTION 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSES SMENT . UNDER THE FIRST PROVISO TO THE NEWLY SUBSTITUTED SE CTION 143(1), WITH EFFECT FROM JUNE 1, 1999, EXCEPT AS PROVIDED I N THE PROVISION ITSELF, THE ACKNOWLEDGEMENT OF THE RETURN SHALL BE DEEMED TO BE AN INTIMATION UNDER SECTION 143(1) WHE RE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE OR (B) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGE MENT IS NOT DONE BY ANY ASSESSING OFFICER, BUT MOSTLY BY MINIST ERIAL STAFF. IT CANNOT THEREFORE BE SAID THAT AN ASSESSMENT IS DONE BY THEM. THE INTIMATION UNDER SECTION 143(1)(A) WAS DE EMED TO BE A NOTICE OF DEMAND UNDER S.156 FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISIONS RELATING TO RECOVERY OF TAX APPLICABLE. BY SUCH APPLICATION ONLY RECOVERY INDIC ATED TO BE PAYABLE IN THE INTIMATION BECAME PERMISSIBLE. NOTH ING MORE CAN BE INFERRED FROM THE DEEMING PROVISIONS. THEREF ORE, THERE BEING NO ASSESSMENT UNDER SECTIONS 143(1)(A), THE Q UESTION OF CHANGE OF OPINION DOES NOT ARISE. 14. APART FROM THE ABOVE, THE COMMISSIONER OF INCO ME-TAX HAS PROPOSED DISALLOWANCE OF FREIGHT CHARGES, COMMI SSION TO BOYS AND AGRICULTURAL INCOME. UNDER S.143(1)(A)(II) THE ASS ESSING OFFICER CAN DISALLOW AN INCORRECT CLAIM, IF SUCH INCORRECT CLAI M IS APPARENT FROM ANY INFORMATION IN THE RETURN. WE ARE NOT SATISFIE D THAT THESE ITEMS MENTIONED IN THE ORDER OF THE COMMISSIONER OF INCOM E-TAX CAN BE DISALLOWED ON THE GROUND THAT THEY ARE PATENTLY DIS ALLOWABLE ON THE BASIS OF INFORMATION FURNISHED IN THE RETURN. EACH ITEM REQUIRES FURTHER DETAILED EXAMINATION. THE ASSESSING OFFICER HAS NOT CONSIDERED TO DISALLOW, WHICH HE SHOULD HAVE OR COULD HAVE UNDER S.143(1)(A). THEREFORE, THERE IS NO ERROR IN THE INTIMATION, EV EN IF IT IS CONSIDERED TO BE AN ORDER. VIEWED FROM THIS ANGLE ALSO, THE A CTION OF THE COMMISSIONER OF INCOME-TAX TO REVISE THE INTIMATION IS WITHOUT JURISDICTION. ITA NO.1104/HYD/2011 SHRI G.MUKUNDA REDDY, KADAPA. 9 15. FOLLOWING THE RATIO OF THE DECISION OF THE AP EX COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS LTD., CITED SU PRA, WE ARE OF THE VIEW THAT THE COMMISSIONER OF INCOME-TAX COULD NOT HAVE ASSUMED THE JURISDICTION UNDER S.263 OF THE ACT AND HENCE, WE QUASH THE ORDER PASSED UNDER S.263 AND ALLOW THE APPEAL OF THE ASSE SSEE. 16. SINCE WE HAVE GIVEN OUR DECISION ON THE JURIS DICTIONAL ISSUE ITSELF IN FAVOUR OF THE ASSESSEE, THE OTHER ISSUES ARE NOT DEALT WITH. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 31.10.2011 SD/- S D/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 31ST OCTOBER, 2011 COPY FORWARDED TO: 1. SHRI G.MUKUNDA REDDY (KADAPA), C/O. SHRI K.VASAN TKUMAR, A.V.RAGHURAM, P. VINOD & B.PEDDIRAJULU, ADVOCATES, FLAT NO.610, 6 TH FLOOR, BABUKHAN ESTATE, BASHEER BAGH, HYDERABAD 5000 001. 2. INCOME - TAX OFFICER, WARD - I, KADAPA 3. COMMISSIONER OF INCOME - TAX, TIRUPATI 4. THE D.R., ITAT, HYDERABAD. B.V.S.
