Calcutta High Court
C. I. T. - I vs Nicco Corporation Ltd on 13 January, 2009
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
ITA No. 172 of 2003
G.A. No.2186 of 2003
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ/Civil Appellate/Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
C. I. T. - I, KOLKATA Plaintiff/Petitioner/Applicant
Versus
NICCO CORPORATION LTD., KOLKATA Defendant/Respondent
BEFORE:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE The Hon'ble JUSTICE SANKAR PRASAD MITRA Date : 13th January, 2009.
The Court :-We have heard Mr. Khaitan. We have also perused the records placed before us. It appears that there is delay of only 98 days in filing this application. Mr. Khaitan did not join issue in this matter. In our considered opinion sufficient cause has been shown in this application to condone the delay. Accordingly, the delay is condoned and the appeal be registered accordingly.
Heard Mr. Khaitan. Perused the petition. It appears that the point was already dealt with by our Division Bench in CIT vs. Coventry Spring and Co.Ltd reported in 257 ITR 632. The question which was decided was 'whether, on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is justified in holding that intimation issued under section 143(1)(a) cannot be rectified under section 154 after issue of notice under section 143(2)?' It appears that the Division Bench came to the conclusion that it was possible for the Assessing Officer to issue a subsequent notice under section 143(2) and to hear the assessee further before finalizing the assessment. The Court also held that the rectification procedure under section 154 is not consistent with the issuance of a section 143(2) notice and on the given facts it came to the conclusion that the Assessing Officer passed an order of regular assessment on the same day as he sought to pass an order under section 154 rectifying his initial intimation under section 143(1)(a) and the Division Bench held in favour of the assessee and answered the question in the affirmative.
This order was passed relying upon a decision of the Gujrat High Court reported in 222 ITR 140 (Gujarat Poly-Avx Electronics Ltd vs. Dy. CIT). It appears from the decision of the Hon'ble Supreme Court in CIT vs. Gujarat Electricity Board the Hon'ble Supreme Court after taking into account the decision of the Gujarat High Court approved the said decision and held in favour of the assessee.
The Hon'ble Supreme Court held "..... ... Even otherwise, the view taken by the Gujarat High Court seems to be correct on principle. There is no dispute that section 143(1)(a) of the Act enacts a summary procedure for quick collection of tax and quick refunds. Under the scheme if there is a serious objection to any of the orders made by the Assessing Officer determining the income, it is open to the assessee to ask for rectification under section 154. Apart therefrom, the provisions of section 143(1)(a) indicate that the intimation sent under section 143(1)(a) shall be without prejudice to the provisions of sub-section (2). The Legislature, therefore, intended that, where the summary procedure under sub-section (1) has been adopted, there should be scope available for the Revenue, either suo motu or at the instance of the assessee to make a regular assessment under sub-section (2) of Section 143. The converse is not available; a regular assessment proceeding having been commenced under section 143(2), there is no need for a summary proceeding under section 143(1)(a)."
We do not find that there is any reason to interfere with the order so passed by the Tribunal or to admit the same. Hence the appeal is dismissed.
All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PINAKI CHANDRA GHOSE, J.) (SANKAR PRASAD MITRA, J.) dg/