ORDER
Per J. Kathuria – This appeal by the Revenue for assessment year 1984-85 raises an interesting issue.
2. Brief facts of the case are these : The assessee filed his return of income for assessment year 1984-85 declaring total income of Rs. 52,585. This included share income from the firm M/s Navketan Knitwears, Ludhiana. We do not know the break-up of the income returned and so it is not possible to state as to how much share income from the said firm was declared by the assessee in his return. The Assessing Officer passed an order under section 143(1) (a) of the Income-tax Act (herewith referred as the Act). While passing the said order, the Assessing Officer included the revised share income from the said firm at Rs. 2,08,710. Thus the total income of the assessee-firm under section 143(1) was worked out at Rs. 2,09,560 as against the returned income of Rs. 52,585. The assessee did not object to the said statement as contemplated by section 143(2) (a) of the Act. Instead, the assessee filed an application under section 154 of the Act before the Assessing Officer on 19-5-1989. The Assessing Officer rejected the said application on the ground that the assessee should have filed an objection under section 143(2) (a) within the stipulated time of one month.
3. The learned CIT (Appeals), however; accepted the assessees plea and held that since the assessment had been made under section 143(1) by enhancing the income, which was not warranted in law, it gave rise to a mistake apparent from record which could be rectified.
4. The learned Departmental Representative submitted that the only remedy available to the assessee in the present case was to file an application on the prescribed form under section 143(2)(a) of the Act objecting to the assessment and that no other remedy of taking recourse to section 154 was permissible in law because there was no mistake apparent from record.
5. None attended the proceedings before us on behalf of the assesse. We, therefore, decided to proceed ex parte on merits qua the assessed
6. We have carefully considered the submissions of the learned Departmental Representative and perused the material on record. Under the summary assessment scheme as it prevailed in the year relevant to assessment year 1984-85, the Assessing Officer could pass an order under section 143(1) (a) without requiring the presence of the assesse. He was also empowered to make certain adjustments as laid down in section 143(1) (b) of the Act. Those adjustments consisted of rectification of any arithmetical error and of granting allowances under various sections as per the assessees own record. The assessee had shown a particular share income from the firm M/s Navketan Knitwears Ludhiana. In our opinion, if the Assessing Officer wanted to make an assessment under section 143(1), then the only course open to him was to adopt the share income as shown by the assessee and if later on, he came to know that the share income as assessed was less than what should have assessed, then he should have taken action under section 155. In the alternative, if the Assessing Officer knew that the determined share of the assessee from the aforesaid firm was much more than what had been shown by the assessed then he should have processed the matter by issue of notice under section 143(2) and assessed the correct share income. Neither of these courses was adopted by the Assessing Officer. He, however, proceeded under section 143(1) but substituted the revised share income in place of the share income shown by the assesse. This, in our opinion, was not permissible in law because the adjustments contemplated by section 143(1)(b) did not cover such an adjustment. In that view of the matter, since the Assessing Officer himself had passed an order which was contrary to the provisions of law, the assessee was within his rights to move an application under section 154 requesting for rectification of mistake apparent from record. It is true that in section 143 itself, there is an in-built mechanism to allow an opportunity to the assessee to object to an assessment made by an Assessing Officer under section 143(1)(a) of the Act. This has to be done by filing an application on a prescribed form within one month of the receipt of an assessment order under section 143(1). This, however, does not mean that other remedies legitimately available to the assessee under the Act stand barred or ousted. For instance, an assesses may not file any objection to the assessment but may file a petition under section 264 to the CIT for the necessary relief. Similarly, in a case like this, where the Assessing Officer has exceeded his jurisdiction in malting certain adjustments which were not permitted in law, the assessee as well could file an application under section 154 and seek redressal of his grievance. This is precisely what the assessee did in the present case. We, therefore, do not accept the argument of the learned Departmental Representative that the only remedy available to the assessee in such a case was to file an objection in a prescribed form under section 143(2) (a) of the Act. The remedy chosen by the assesses was a valid remedy and was permitted by law. The assessees discretion of choosing a remedy cannot be questioned. We, therefore, uphold the reasoning of the learned CIT (Appeals) in this regard and dismiss the Revenues appeal.