ACIT, CHENNAI V. M/s. Ranjini Investments P. Ltd., CHENNAI

ITA 1272/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61243 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 27-06-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 07-07-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R SIVARAMAN
• Keywords: Depreciation; Retrospective amendment; Revised return
• Section: 143(3); 147; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER] I.T.A.NO.1272/MDS/2011 ASSESSMENT YEAR : 2001-02 THE ACIT COMPANY CIRCLE V(3) CHENNAI VS M/S RANJANI INVESTMENTS P. LTD NO.45, POES ROAD CHENNAI 600 018 [PAN AABCR 7941P] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT RESPONDENT BY : SHRI R.SIVARAMAN, ADVOCATE DATE OF HEARING : 27-06-2012 DATE OF PRONOUNCEMENT : 29-06-2012 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REV ENUE AGAINST THE ORDER OF THE CIT(A)-V, CHENNAI, DATED 12.4.2011 BY RAISING T HE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS OPPOSED TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. CIT(A) ERRED IN HOLDING THAT THE PETITI ON OF THE ASSESSEE UNDER SECTION 154 AND 155(4) DATED 09.03.2 007 STANDS ALLOWED AND THAT THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2001-02 HAS TO BE RECOMPUTED. 2.1 IT IS SUBMITTED THAT THE CIT(A) HAS IN EFFECT D IRECTED THE ASSESSING OFFICER TO RE ASSESS THE INCOME WHICH IS NOT IN CONFORMITY WITH THE PROVISIONS OF SECTION 155(4). I.T.A.NO. 1272/11 :- 2 -: 2.2 THE LD. CIT(A) FAILED TO APPRECIATE THAT THE A SSESSEE FILED THE ORIGINAL RETURN OF INCOME BY DECLARING INCOME UNDER COMPLETED CONTRACT METHOD WHICH IS CONTRARY TO THE METHOD ADVOCATED BY THE HIGH COURT SUBSEQUENTLY AFF IRMED , BY THE HON'BLE SUPREME COURT. 2.2 HAVING REGARD TO THE HON'BLE SUPREME COURT DECI SION IN THE CASE M/S GOETZE INDIA, THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT WHEN THE CLAIM OF THE ASSESSEE WAS NOT MADE THROUGH A REVISED RETURN OF INCOME, THE CLAIM ( CANNOT BE ENTERTAINED. IT IS SUBMITTED THAT THE HON'BLE MU MBAI TRIBUNAL IN CASE OF JAY BHARAT CO OP HOUSING SOCIE TY LIMITED (125 ITD 90) HAS ALSO EXPRESSED THE VIEW THAT EVEN APPELLATE AUTHORITIES CANNOT ALL OW AN ASSESSEE TO REVISE ITS INCOME OTHERWISE THAN BY FIL ING A REVISED RETURN. 2.2 THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE FILED PETITION UNDER SECTION 154 ON 09.03.2007 SEEKING RE CTIFICATION OF INTIMATION DATED 08.07.2002 AND RECOMPUTATION OF ITS INCOME, WHICH IS BEYOND THE TIME LIMIT AND THEREFOR E, THE PETITION OF THE ASSESSEE CANNOT BE ENTERTAINED. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 2. THE DR, AT THE TIME OF THE HEARING, SOUGHT PERMISSI ON TO ARGUE FOR ADMISSION OF THE ADDITIONAL GROUND OF APP EAL RAISED IN THIS APPEAL, BY THE REVENUE ON 17.10.2011, WHICH READS A S UNDER: CIT(APPEALS) OUGHT TO HAVE NOTED THAT AFTER 01-06- 2001 A.O DOES NOT HAVE THE POWER TO VARY INCOME RETURNED IN A PROCEEDINGS U/S 143(1). HE OUGHT TO HAVE NOTED THAT WHEN A.O. DOES NOT HAVE THE JURISDICTION TO DO SO U/S 143(1), HE CANNOT DO SO IN A PETITION U/S 154 TO T HE SAID ORDER U/S 143(1). I.T.A.NO. 1272/11 :- 3 -: 3. THE A.R OF THE ASSESSEE DID NOT HAVE ANY OBJECTION IN THE ADMISSION OF THIS ADDITIONAL GROUND OF APPEAL RAISE D BY THE REVENUE, THEREFORE, THE SAME WAS ADMITTED AND THE PARTIES WE RE ALLOWED TO MAKE THEIR SUBMISSIONS. 4. THE DR ARGUING ON THE ADDITIONAL GROUNDS OF APPEAL SUBMITTED THAT SECTION 154 WAS AMENDED WITH EFFECT FROM 1.6.2001 AND IN PLACE OF SECTION 143(1)(A), SECTION 143(1) W AS SUBSTITUTED. HE SUBMITTED THAT IN A PROCESSING OF RETURN MADE U/S 143(1), THE ASSESSING OFFICER DID NOT HAVE THE POWER TO RECOMPU TE THE INCOME OF THE ASSESSEE U/S 143(1) EXCEPT FOR ARITHMETICAL ERROR OR INCORRECT CLAIM APPARENT FROM THE INFORMATION IN THE RETURN. THEREFORE, U/S 154, THE ASSESSING OFFICER DID NOT HAVE THE POWER T O RECTIFY AN INTIMATION PASSED U/S 143(1) OF THE ACT. HE SUBMI TTED THAT THERE WAS NO MISTAKE APPARENT FROM RECORD AND THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY DISMISSED THE APPLICATION OF THE ASS ESSEE U/S 154 OF THE ACT BY OBSERVING THAT THE REQUEST FOR RECTIFICATIO N U/S 154 CANNOT BE CONSIDERED AS IT IS NOT A MISTAKE WHICH IS APPARENT FROM RECORD. HE SUBMITTED THAT IN THE DECISION OF HON'BLE SUPREME C OURT RELIED ON BY THE CIT(A) IN THE CASE OF ACIT RAJKOT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD (2008) 305 ITR 227(SC) SCRUTINY ASSES SMENT U/S 143(3) WAS MADE AND THERE WAS MISTAKE IN THAT ASSESSMENT WHICH WAS HELD BY THE HON'BLE SUPREME COURT AS RECTIFIABLE U/S 154 OF THE ACT FOR ANY I.T.A.NO. 1272/11 :- 4 -: MISTAKE IN THE SAID ORDER. IN THE INSTANT CASE, AS THERE WAS NO SCRUTINY ASSESSMENT, THE DECISION OF HON'BLE SUPREME COURT W AS NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. HE FURTHER RE LIED ON THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF CHOICE AQUACULTURE (P) LTD VS ITO I(4), [2006] 100 ITD 143 , WHERE IT WAS HELD THAT THE CUMULATIVE EFFECT OF THE NEWLY SUBSTI TUTED SECTION 143(1) AND OMISSION WITH EFFECT FROM 1.6.1999 OF SECTION 1 43(1A), 143(1B) AND 143(5) IS THAT NEITHER ANY PRIMA FACIE ADJUSTME NT CAN BE MADE NOR ANY LEVY OF ADDITIONAL INCOME TAX CAN BE MADE ON OR AFTER 1.6.1999. THUS, THE POWERS OF THE ASSESSING OFFICER UNDER THI S SECTION ARE VERY LIMITED AND RESTRICTED ONLY TO THE RETURN OF INCOME FILED BY THE ASSESSE. THE ASSESSING OFFICER CANNOT VISIT BEYOND THAT RETU RN EXCEPT TO COMPUTE TAX OR INTEREST AFTER ADJUSTMENT OF PRE-PAI D TAXES. THEREFORE, ACCORDING TO THE CLEAR PROVISIONS OF SEC. 143(1), I T WOULD BE BEYOND THE JURISDICTION OF THE ASSESSING OFFICER TO COMPU TE DEPRECIATION ON THE BASIS OF WDV DETERMINED IN EARLIER YEAR/YEARS. THE ASSESSING OFFICER DOES NOT HAVE SUCH POWER TO DISTURB THE INC OME DISCLOSED IN THE RETURN. HE IS NOT TO COMPUTE THE INCOME OF THE ASSESSEE EVEN BY ISSUE OF INTIMATION ON THE BASIS OF RETURN OF INCOM E AS DECLARED BY THE ASSESSEE. THE ASSESSE, IN THE INSTANT APPEAL, WAS SEEKING A RELIEF WHICH WAS NOT FOUND IN THE RETURN OF INCOME FILED B Y IT. THE ASSESSMENT IN THE INSTANT CASE WAS FRAMED U/S 143(1 ) ON THE BASIS OF RETURN OF INCOME. THE WDV TAKEN BY THE ASSESSEE IN THE RETURN OF I.T.A.NO. 1272/11 :- 5 -: INCOME WAS NOT THE WDV AS DETERMINED AS PER RECORD FOR THE IMMEDIATE PRECEDING YEAR. THUS, ANY ADJUSTMENT MAD E WITH RESPECT TO WDV FOR THE YEAR UNDER CONSIDERATION TO BRING TH E SAID WDV IN CONSONANCE WITH THE WDV DETERMINED FOR THE IMMEDIA TE PRECEDING YEAR WAS NOT FINDING SUPPORTED BY THE RETURN OF INC OME FILED FOR THE YEAR UNDER CONSIDERATION. THUS, IN ABSENCE OF POWE R TO MAKE ANY ADJUSTMENT IN THE RETURNED INCOME, THE ASSESSING OF FICER HAD RIGHTLY DECLINED TO RECTIFY THE ORDER U/S 143(1). AS REGAR DS THE CONTENTION OF THE ASSESSEE THAT AS PER THE PROVISIONS OF SEC 154( 1)(B), THE ASSESSING OFFICER CAN AMEND ANY INTIMATION PASSED U/S 143(1), IT MIGHT BE OBSERVED THAT WHAT CANNOT BE DONE UNDER SECTION 143 (1) CANNOT ALSO BE DONE BY TAKING RESORT TO SEC. 154(1)(B). MAKING ANY ADJUSTMENT TO THE RETURNED INCOME BY WAY OF PROVISIONS OF SECTION 154 WILL BE AMOUNTING TO DO AN ACT WHICH CANNOT BE DONE DIRECTL Y UNDER THE PROVISIONS OF SEC. 143(1). THE PROPOSITION OF LAW IS WELL SETTLED THAT WHAT CANNOT BE DONE PER DIRECTUM IS NOT PERMISSIBLE TO BE DONE PER OBLIQUUM , MEANING THEREBY, WHATEVER IS PROHIBITED BY LAW TO BE DONE, CANNOT LEGALLY BE EFFECT BY AN INDIRECT AND CIRCUIT OUS CONTRIVANCE ON THE PRINCIPLE OF QUANDO ALIQUID PROHIBETUR, PROHIBETUR AT OMNE PER QUOD DEVENITUR AD ILLUD. 5. ON THE OTHER HAND, THE A.R OF THE ASSESSEE ARGUED THAT ACCORDING TO THE PROVISIONS OF SECTION 154(1)(B), T HE ASSESSING OFFICER I.T.A.NO. 1272/11 :- 6 -: CAN AMEND ANY INTIMATION PASSED U/S 143(1) OF THE ACT. HE ALSO REITERATED THE SUBMISSIONS MADE BEFORE THE CIT(A) A ND SUPPORTED THE ORDER OF THE CIT(A). 6. WE FIND THAT THE CIT(A) HAS DECIDED THE ISSUE BY OB SERVING AS UNDER: 3. THE FACTS OF THE CASE ARE THAT THE APPELLANT I S A PRIVATE LIMITED COMPANY SUBSCRIBING TO CHITS AS ITS BUSINES S ACTIVITY. IT IS MAINTAINING ITS ACCOUNTS ON MERCANTILE BASIS, AND COMPUTING LOSS OR PROFIT, AS THE CASE MAY BE, AT TH E END OF THE CHIT PERIOD IN RESPECT OF CHITS TERMINATING IN A PARTICULAR PREVIOUS YEAR FOLLOWING THE COMPLETED CONTRACTS ME THOD. THIS METHOD WAS FOLLOWED RIGHT FROM THE INCORPORATION OF THE COMPANY. FOR THE ASSESSMENT YEAR 2001-02 ALSO, FOLL OWING THE SAME COMPLETED CONTRACT METHOD, THE ASSESSEE FI LED A RETURN DECLARING A LOSS OF RS.1,03,42,597/- AND THIS WAS ACCEPTED BY THE ASSESSING OFFICER IN HIS INTIMATION U/S.143(1)(A) DATED 08.07.02. 4. FOR THE ASSESSMENT YEARS 90-91; 91-92; AND 93-94 , THE ASSESSING OFFICER HAD HELD THAT THE COMPLETED CONTR ACT METHOD FOLLOWED BY THE APPELLANT IS NOT THE CORRECT METHOD TO ASCERTAIN THE ASSESSABLE INCOME. HE HELD THAT CHIT DIVIDEND R ECEIVED HAS TO BE TAXED IN THE YEAR OF RECEIPT AND CHIT LO SS HAS TO BE ALLOWED ON PROPORTIONATE TIME BASIS BY DISTRIBUTIN G IT OVER THE PERIOD REMAINING SUBSEQUENT TO BID AUCTION. THIS WA S DISPUTED BY THE APPELLANT AND WAS SUBJECT MATTER OF LITIGATION UPTO SUPREME COURT. THE HON'BLE CHENNAI HIGH COURT IN ITS ORDER DATED 19.06.2006, HELD THAT THE DIVIDEND INCO ME HAS TO BE TAXED IN THE YEAR IT ACCRUED AND THAT THE CHIT LOSS SHOULD BE ALLOWED IN THE YEAR OF ITS ACCRUAL. THUS WHILE THE ASSESSING OFFICER'S METHOD WAS APPROVED IN ASSESSIN G DIVIDEND INCOME, THE APPELLANT'S METHOD WAS APPROVE D IN RESPECT OF CHIT LOSS. ON FURTHER APPEAL, BY THE DE PARTMENT, THE HON'BLE SUPREME COURT, BY ITS ORDER DATED 27.02.08, CONFIRMED THE DECISION OF THE HON'BLE HIGH COURT CH ENNAI. THUS, THE DISPUTE REGARDING METHOD OF ACCOUNTING R EACHED ITS FINALITY ON 27.02.08. 5. BEFORE THE CHENNAI HIGH COURT PASSED ITS ORDER, THE ASSESSMENTS FOR 1998- 99;1999-2000 & 2000-2001 WERE REOPENED BY THE ASSESSING OFFICER U/S.147. THE I.T.A.NO. 1272/11 :- 7 -: REASSESSMENTS FOR THESE YEARS WERE COMPLETED ON 28. 12.2006 AFTER THE HIGH COURT'S ORDER DATED 19.06.06. IN TH ESE ASSESSMENTS, INCOME /LOSS COMPUTATION WAS DONE ON T HE BASIS OF MET A D OF ACCOUNTING APPROVED BY THE HIGH COURT. 6. THE APPELLANT FELT THAT FOR THE ASSESSMENT YEAR 2001-02 WHERE THE COMPUTATION OF INCOME HAD BEEN DONE UNDER COMPLETED CONTRACT METHOD AND ACCEPTED IN THE INTIM ATION 143 (L)(A) DATED 08.07.02 HAS BECOME INCORRECT IN VIEW OF THE METHOD FORMULATED BY THE HIGH COURT AND CONFIRMED BY THE SUPREME COURT. IN VIEW OF THIS THE APPELLANT FILED A PETITION BEFORE THE ASSESSING OFFICER ON 09.03.2007 SEEKING RECTIFICATION OF THE INTIMATION U/S.143(1)(A) DATE D 08.07.02 TO COMPUTE THE INCOME ON THE B A SIS OF THE METHOD FORMULATED BY THE HIGH COURT. THE APPLICATION WAS FILED INVOKING THE PROVISIONS OF SEC . 154 AND SEC . 155 (4) OF THE ACT . THIS APPLICATION WAS REJECTED BY THE ASSESSING OFFICER IN HIS LETTER DATED 31 . 05.07 IN THE FOLLOWING WORDS: YOUR REQUEST FOR RECTIFICATION U/S 154 CANNOT BE CONSIDERED AS IT IS NOT A MISTAKE WHICH IS APPARENT FROM RECORD. AGGRIEVED BY THIS ORDER, THE PRESENT APPEAL HAS BEE N FILED. 7. I HAVE GONE THROUGH THE GROUNDS OF APPEAL AND FACT S OF THE CASE. THE APPELLANT'S AUTHORISED REPRESENTATIVE , MR. T S SUNDARRAJAN FCA HAS BEEN HEARD. IT IS CONTENTED BY THE AUTHORIZED REPRESENTATIVE THAT IN THE LIGHT OF THE HIGH COURT AND SUPREME COURT DECISION ON THE METHOD OF COMPUTING T HE INCOME, THERE IS A MISTAKE IN THE COMPUTATION OF I NCOME IN THE INTIMATION U/S.143(1)(A) DATED 08.07.02; THAT THE ASSESSING OFFICER HAVING TAKEN ACTION TO REVISE THE ASSESSMEN TS OF EARLIER YEARS 1998-99 TO 2000-01 U/S.147, HAS TO REVISE THE INTIMATION DATED 08.07.02 TO FOLLOW THE METHOD OF COMPUTATION OF INCOME FIXED BY HIGH COURT; THAT THE NON CONSIDE RATION OF THE JURISDICTIONAL HIGH COURT'S ORDER AS CONFIRMED BY THE SUPREME COURT IN THE APPELLANT'S CASE ITSELF IS A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S.154 ; AND DREW SUPPORT FROM THE SUPREME COURT DECISION IN THE CASE OF ACIT RAJKOT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD (200 8)(173 TAXMAN 322 / 305 ITR 227). HE FURTHER STATED THAT SINCE THE ASSESSMENT OF EARLIER YEARS' HAVE BEEN REOPENED U.S ,147 AND THERE HAS BEEN A CHANGE IN LOSS CARRIED FORWARD TO ASSESSMENT YEAR 2001-02, THE PROVISIONS OF SEC.155 (4) ARE ATTRACTED FOR THE ASSESSMENT YEAR 2001-02 AND THE I NTIMATION U/S.143 (1) (A) DATED 08.07.02 HAS TO BE RECTIFIED. IT IS THEREFORE STATED BY HIM THAT THE ORDER U/S.154 DAT ED 08.07.02 I.T.A.NO. 1272/11 :- 8 -: OF THE ASSESSING OFFICER IS NOT VALID IN LAW. HE FU RTHER STATED THAT THE METHOD OF COMPUTATION FIXED BY THE HIGH C OURT'S ORDER DATED 19.06.2006 HAVING BECOME FINAL BY THE SUPREME COURT'S ORDER DATED 27.02.08, THE RECTIFICATION APP LICATION FILED ON 09.03.2007IS IN TIME. 8. I HAVE GIVEN DEEP THOUGHT AND CONSIDERED THE VAR IOUS ARGUMENTS OF THE AUTHORIZED REPRESENTATIVE. THE ME THOD OF COMPUTATION OF INCOME FROM THE CHIT BUSINESS THAT HAS BEEN FOLLOWED IN THE RETURN AND ACCEPTED IN THE INTIMATI ON U/S.143(1)(A) DATED 08.07.02 ( COMPLETED CONTRACT METHOD) IS NOT A CORRECT ONE AND THE CORRECT METHOD HAS BEEN LAID DOWN IN THE HIGH COURT'S ORDER DATED 19.06.06 WHICH HAS BECOME FINAL BY THE SUPREME COURT'S ORDER DATED 17.02.08. THE CORE ISSUE IS THEREFORE WHETHER THE DECISION ACTS RETRO SPECTIVELY. IN PARA 42 OF THEIR ORDER IN THE SAURASHTRA KUTCH STOC K EXCHANGE LTD CASE (2008) 173 TAXMAN 322/ 305 ITR 227, THE HO N'BLE SUPREME COURT HAS HELD: ' IN OUR JUDGMENT, IT IS ALSO WELL-SETTLED THAT A J UDICIAL DECISION ACTS RETROSPECTIVELY. ACCORDING TO BLACKSTONIAN THEORY, IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A 'NEW RULE' BUT TO MAINTAIN AND EXPOUND THE 'OLD ONE'. IN OTHER WORDS, JUDGES DO NOT MAKE LAW, THEY ONLY DISCOVER OR FIND THE CORRECT LAW. THE LAW HAS ALWAYS BEEN THE SAME. IF A SUBSEQUENT DECISION ALTERS THE EARLIER ONE, I T ( THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RESPECTIVELY. TO PUT IT DIFFERENTLY, EV EN WHERE AN EARLIER DECISION OF THE COURT OPERATED FO R QUITE SOME TIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGA L POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD . IN THE SAME CASE, IT HAS BEEN HELD THAT NON CONSIDE RATION OF A DECISION OF JURISDICTIONAL HIGH COURT AND SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM RECORD. I N THIS VIEW OF THE MATTER, I HOLD THAT THERE IS MISTAKE AP PARENT FROM RECORD IN THE INTIMATION DATED 08.07.02 WHICH NEEDS TO BE RECTIFIED. 9. I ALSO AGREE WITH THE AUTHORIZED REPRESENTATIVE THAT THE PROVISIONS OF SEC . 155(4) ARE ATTRACTED IN THE FACTS OF THE CASE. THE ASSESSING OFFICER HAS CHOSEN TO REVISE THE ASSESSMENTS OF EARLIER YEARS VIZ.1998-99; 1999-2000 & 2000 - I.T.A.NO. 1272/11 :- 9 -: 2001 BY TAKING ACTION U/S.147 AND HAS ALTERED THE LOSS AVAILABLE TO BE CARRIED FORWARD FROM THESE YEARS TO THE SUBSEQUENT YEARS. AS SUCH, THE PROVISIONS OF SEC . 155 (4) ARE ATTRACTED AND THE INCOME / LOSS COMPUTATION OF THE ASSESSMENT YEAR 2001-02 HAS TO BE RECTIFIED. THIS W AS SOUGHT FOR BY THE APPELLANT IN HIS APPLICATION DAT ED 09.03.2007 WHERE IT HAS BEEN SPECIFICALLY MENTIONE D AS 'PETITION U/S. 154 AND 155(4)' OF THE ACT. THE ASSE SSING OFFICER HAS NOT DISCUSSED THIS ASPECT IN HIS ORDER DATED 30.05.07. FOR THE REASONS DISCUSSED EARLIER, I HOLD THAT THE INTIMATION DATED 08.07.02 NEEDS TO BE REVISED U/S. 155(4) ALSO. 10. IN THE RESULT, THE ASSESSING OFFICER'S ORDER DA TED 31.05.07 IS SET ASIDE AND THE APPELLANT'S PETITION U/S.154 AND 155(4) DATED 09.03.07 IS ALLOWED. THE ASSESSING OFFICER I S DIRECTED TO ARRIVE AT THE INCOME / LOSS OF THE YEAR BY FOLLO WING THE METHOD PRESCRIBED BY THE HIGH COURT AND ALSO DETER MINE THE LOSS OF EARLIER YEARS TO BE CARRIED FORWARD. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE CIT(A) ALLOWED THE APPLICATION FI LED BY THE ASSESSEE U/S 154 OF THE ACT AND DIRECTED THE ASSESSING OFFIC ER TO RECOMPUTE THE INCOME OF THE ASSESSEE BY TAKING INTO CONSIDERATIO N THE METHOD OF ACCOUNTING SETTLED IN THE CASE OF THE ASSESSEE IN EARLIER YEAR BY THE HON'BLE MADRAS HIGH COURT WHICH WAS ALSO SUBSEQUENT LY AFFIRMED BY THE HON'BLE SUPREME COURT. THE CIT(A) FURTHER DIRE CTED THE ASSESSING OFFICER TO DETERMINE THE LOSS OF EARLIER YEARS TO B E BROUGHT FORWARD. 9. BEING AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A), T HE REVENUE IS IN APPEAL BEFORE US. I.T.A.NO. 1272/11 :- 10 -: 10. THE SOLE CONTENTION OF THE REVENUE IS THAT AS NO IN COME WAS COMPUTED BY THE ASSESSING OFFICER IN THE INSTANT CA SE AND THE RETURN FILED BY THE ASSESSEE WAS ACCEPTED U/S 143(1) OF THE ACT BY ISSUING AN INTIMATION U/S 143(1), THE ASSESSING OFFICER HAS NO POWER TO AMEND THE INCOME DISCLOSED IN THE RETURN OF INCOME. THE ASSESSING OFFICER CANNOT AMEND THE INCOME OF THE ASSESSEE IN A PROCE EDING U/S 154 OF THE ACT IN CONTINUATION OF PROCEEDING U/S 143(1) O F THE ACT. FOR THE ABOVE SUBMISSION, THE DR PLACED RELIANCE ON THE DEC ISION OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF CHOI CE AQUACULTURE (P) LTD (SUPRA). 11. ON THE OTHER HAND, THE A.R SUPPORTED THE ORDER OF T HE CIT(A) AND HIS ONLY SUBMISSION WAS THAT IN VIEW OF THE HON'BLE SUPREME COURTS DECISION IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD (SUPRA), NON-CONSIDERATION OF THE DECI SION OF THE HON'BLE JURISDICTIONAL HIGH COURT PRESENTED A CASE OF MISTA KE APPARENT FROM RECORD AND THEREFORE, THE CIT(A) WAS JUSTIFIED IN D IRECTING THE ASSESSING OFFICER TO RECTIFY THE INTIMATION ISSUED U/S 143(1) OF THE ACT. 12. WE FIND THAT THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF CHOICE AQUACULTURE (P) LTD (SUPRA) HAS HELD AS UNDER: THE CUMULATIVE EFFECT OF THE NEWLY SUBSTITUTED SECT ION 143(1) AND OMISSION WITH EFFECT FROM 1-6-1999 OF SE CTION 143(1A), 143(1B) AND 143(5) IS THAT NEITHER ANY PRIMA FACIE ADJUSTMENT CAN BE MADE NOR ANY LEVY OF ADDITIONAL INCOME-TAX CAN BE ON OR AFTER 1-6-1999. THUS, THE I.T.A.NO. 1272/11 :- 11 -: POWERS OF THE ASSESSING OFFICER UNDER THIS SECTION ARE VERY LIMITED AND RESTRICTED ONLY TO THE RETURN OF I NCOME FILED BY THE ASSESSEE. THE ASSESSING OFFICER CANNOT VISIT BEYOND THAT RETURN EXCEPT TO COMPUTE TAX OR INTERES T AFTER ADJUSTMENT OF PRE-PAID TAXES. THEREFORE, ACCORDING TO THE CLEAR PROVISIONS OF SECTION 143(1), IT WOULD BE BEYOND THE JURISDICTION OF THE ASSESSING OFFICER TO COMPUTE DEPRECIATION ON THE BASIS OF W.D.V. DETERMINED IN EARLIER YEAR/YEARS. THE ASSESSING OFF ICER DOES NOT HAVE SUCH POWER TO DISTURB THE INCOME DISCLOSED IN THE RETURN. HE IS NOT TO COMPUTE THE INCOME OF THE ASSESSE EVEN BY ISSUE OF INTIMATION ON THE B ASIS OF RETURN OF INCOME AS DECLARED BY THE ASSESSEE. TH E ASSESSEE, IN THE INSTANT APPEAL, WAS SEEKING A RELIEF WHICH WAS NOT FOUND IN THE RETURN OF INCOME FILED BY IT. THE ASSESSMENT, IN THE INSTANT CASE, WAS FRAMED UND ER SECTION 143(1) ON THE BASIS OF RETURN OF INCOME. TH E WDV TAKEN BY THE ASSESSEE IN THE RETURN OF INCOME W AS NOT THE WDV AS DETERMINED AS PER RECORD FOR THE IMMEDIATE PRECEDING YEAR. THUS, ANY ADJUSTMENT MADE WITH RESPECT TO WDV FOR THE YEAR UNDER CONSIDERATIO N TO BRING THE SAID WDV IN CONSONANCE WITH THE WDV DETERMINED FOR THE IMMEDIATE PRECEDING YEAR WAS NO T FINDING SUPPORTED BY THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION. THUS, IN ABSENCE OF POWER TO MAKE ANY ADJUSTMENT IN THE RETURNED INCOME, THE ASSESSING OFFICER HAD RIGHTLY DECLINED TO RECTIFY T HE ORDER UNDER SECTION 143(1). [PARA 7] AS REGARDS THE CONTENTION OF THE ASSESSEE THAT AS PER PROVISIONS OF SECTION 154(1)(B), THE ASSESSING OFF ICER CAN AMEND ANY INTIMATION PASSED UNDER SECTION 143(1), IT MIGHT BE OBSERVED THAT WHAT CANNOT BE DONE UNDER S ECTION 143(1) CANNOT ALSO BE DONE BY TAKING RESORT TO SECTION 154(1)(B). MAKING ANY ADJUSTMENT TO THE RETURNED INCOME BY WAY OF PROVISIONS OF SECTION 154 WILL BE AMOUNTING TO DO AN ACT WHICH CANNOT BE DONE DIRECTL Y UNDER THE PROVISIONS OF SECTION 143(1). THE PROPOSITION OF LAW IS WELL-SETTLED THAT WHAT CANNOT BE DONE PER DIRECTUM' IS NOT PERMISSIBLE TO BE DONE 'PER OBLIQUUM', MEANING THEREBY, WHATEVER IS PROHIBITED BY LAW TO BE DONE, CANNOT LEGALLY BE EFFECTED BY AN INDIR ECT AND CIRCUITOUS CONTRIVANCE ON THE PRINCIPLE OF QUANDO ALIQUID PROHIBETUR, PROHIBETUR AT OMNE PER QUOD DEVENITUR AD ILLUD. THEREFORE, THE. COMMISSIONER (APPEALS) HAD RIGHTLY UPHELD THE REJECTION OF APPLICATION FILED BY THE ASSESSEE UNDER SECTION 154. I.T.A.NO. 1272/11 :- 12 -: 13. WE FIND THAT THE CIT(A) HAS NOT TAKEN INTO CONSIDER ATION THE ABOVE DECISION WHILE DECIDING THE APPEAL OF THE AS SESSEE. 14. WE FURTHER FIND THAT SECTION 155(4) OF THE ACT REA DS AS UNDER: (4) WHERE AS A RESULT OF PROCEEDINGS INITIATED UND ER SECTION 147 , A LOSS OR DEPRECIATION HAS BEEN RECOMPUTED AND IN CONSEQUENCE THEREOF IT IS NECESSARY TO RECOMPUTE THE TOTAL INCOME OF THE ASSESSEE FOR THE SUCCEEDING YEAR OR Y EARS TO WHICH THE LOSS OR DEPRECIATION ALLOWANCE HAS BEEN C ARRIED FORWARD AND SET OFF UNDER THE PROVISIONS OF SUB-SEC TION (1) OF SECTION 72 , OR SUB-SECTION (2) OF SECTION 73 , OR SUB-SECTION (1) 21 [OR SUB-SECTION (3)] OF SECTION 74 , 22 [OR SUB-SECTION (3) OF SECTION 74A ,] THE 23 [ASSESSING] OFFICER MAY PROCEED TO RECOMPUTE THE TOTAL INCOME IN RESPECT OF SUCH YEAR OR YEARS AND MAKE THE NECESSARY AMENDMENT ; AND THE PROVISIO NS OF SECTION 154 SHALL, SO FAR AS MAY BE, APPLY THERETO, THE PERIOD OF FOUR YEARS SPECIFIED IN SUB-SECTION (7) OF THAT SECTION BEING RECKONED 24 [FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER WAS PASSED] UNDER SECTION 147 . 15. THUS, A READING OF THE ABOVE PROVISION SHOWS THAT I NCOME OF SUBSEQUENT YEARS IN WHICH BROUGHT FORWARD LOSS OR D EPRECIATION HAS BEEN SET OFF WHEN NEEDS AMENDMENT BECAUSE OF VARIAT ION IN THE AMOUNT OF SUCH LOSS OR DEPRECIATION DUE TO A PROCEE DING U/S 147 IN ANY PRECEDING YEAR THEN THE AMENDMENT IN THE COMPUT ATION OF TOTAL INCOME CAN BE MADE BY THE ASSESSING OFFICER AS PER THE PROVISIONS OF THIS SUB-SECTION. THE CIT(A) HAS NOWHERE RECORDED THAT ANY BROUGHT FORWARD LOSS OR DEPRECIATION WAS SET OFF WITH THE I NCOME OF THE CURRENT YEAR. THE DIRECTION OF THE CIT(A) TO DETERMINE THE LOSS OF EARLIER YEARS TO BE CARRIED FORWARD IS OBVIOUSLY BEYOND THE SCOPE OF THE I.T.A.NO. 1272/11 :- 13 -: PROVISIONS OF SECTION 155(4) OF THE ACT. FURTHER W E FIND THAT THE CIT(A) HAS NOT RECORDED ANY FINDING AS TO WHETHER T O APPLY THE LAW AS PRONOUNCED BY THE HON'BLE JURISDICTIONAL HIGH COURT AND SUBSEQUENTLY AFFIRMED BY THE HON'BLE SUPREME COURT FOR THE YEAR UNDER CONSIDERATION ANY FURTHER INVESTIGATION OF FACTS IS REQUIRED OR NOT. IT IS NOT CLEAR FROM THE DECISION OF THE CIT(A) THAT HOW THE ALLEGED MISTAKE WAS APPARENT FROM RECORD. IT IS A WELL SETTLED P OSITION OF LAW THAT WHEN FOR APPLICATION OF A SUBSEQUENT DECISION OF TH E HON'BLE JURISDICTIONAL HIGH COURT OR HON'BLE SUPREME COURT FURTHER INVESTIGATION INTO THE FACTS IS REQUIRED THEN IT CA NNOT BE HELD TO BE AN APPARENT MISTAKE. WE FURTHER OBSERVE THAT BOTH THE PARTIES BEFORE US HAVE NOT FILED THE COPY OF RECTIFICATION PETITION F ILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. WE ALSO FIND THAT TH E ASSESSING OFFICER HAS ALSO NOT PASSED A SPEAKING ORDER. THE ASSESSIN G OFFICER HAS HELD THAT THE MISTAKES SOUGHT TO BE RECTIFIED BY THE AS SESSEE ARE NOT APPARENT MISTAKES BUT HE HAS GIVEN NO REASONS FOR A RRIVING AT THIS CONCLUSION. SUCH AN UNREASONED AND NON-SPEAKING OR DER CANNOT BE APPRECIATED. THUS, WE FIND THAT THE ORDERS OF BOTH THE LOWER AUTHORITIES ARE NOT IN ORDER AND THE FULL FACTS HAV E NOT BEEN BROUGHT ON RECORD. IN THESE CIRCUMSTANCES, IN OUR CONSIDERED OPINION, IT SHALL BE JUST AND FAIR TO RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH BY PASSING A SPEAKI NG ORDER AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE. WE, I.T.A.NO. 1272/11 :- 14 -: THEREFORE, SET ASIDE THE ORDERS OF THE LOWER AUTHOR ITIES AND ORDER ACCORDINGLY. THUS, THE GROUND OF APPEAL OF THE REV ENUE IS ALLOWED FOR STATISTICAL PURPOSES. 16. THE DR HAS MADE NO SUBMISSION ON OTHER GROUNDS OF A PPEAL TAKEN IN THIS APPEAL. HENCE, THEY ARE DISMISSED FO R WANT OF PROSECUTION. 17. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY, THE 29 TH OF JUNE, 2012, AT CHENNAI SD/- SD/- (V. DURGA RAO) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 29 TH JUNE, 2012 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR