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TAXAP/555/1999 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 555 of 1999
With
TAX
APPEAL No. 557 of 1999
For
Approval and Signature:
HONOURABLE
MR. JUSTICE D.A.MEHTA
HONOURABLE
MS. JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
DY.
CIT(A) S.R.8, - Appellant(s)
Versus
GUJARAT
HEAVY CHEMICALS LTD. - Opponent(s)
=========================================
Appearance
:
MR KM
PARIKH for
Appellant(s) : 1,
MR RK PATEL with MS PAURAMI SHETH for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR. JUSTICE D.A.MEHTA
and
HONOURABLE
MS. JUSTICE H.N.DEVANI
Date
: 20/04/2010
COMMON
ORAL JUDGMENT
(Per : HONOURABLE MS. JUSTICE H.N.DEVANI)
1. Both
these appeals arise out of the common order of the Tribunal in
relation to the same assessment year and between the same parties
hence, the same were taken up for hearing together and are disposed
of by this common judgment.
2. Though
at the time of admitting both the appeals on 30th August,
2000, the Court had formulated following substantial question of law,
this Court is of the view that in the facts and circumstances of the
case, it is not necessary to answer the said question:-
“Whether
the appellate tribunal is right in law and of facts in cancelling the
prima facie adjustment made under section 143(1)(a) in respect of
refund claim of custom duty pertaining to assessment year 1989-90
written off during the previous year amounting to Rs.1,48,19,886/-
and an amount of Rs.91,31,355/- being unpaid royalty under section
43B”.
3. The
assessment year is 1992-93. The assessee had filed return of income
on 30th December, 1992. The Assessing Officer issued
notice under sub-section (2) of section 143 on 02nd April,
1993. Subsequently, vide order dated 29th July, 1993, the
Assessing Officer made prima facie adjustment in exercise of powers
under section 143(1)(a). In the light of the aforesaid facts, it is
common ground between the parties that the issue now stands
concluded. Hence the question is reframed. The following reframed
substantial question of law arises for consideration in both these
appeals:-
“Whether
it was permissible for the Assessing Officer to exercise powers under
section 143(1)(a) of the Income Tax Act, 1961 after notice had been
issued under section 143(2) of the Act.”
4. As
noted hereinabove, the Assessing Officer had issued intimation under
section 143(1)(a) after notice for regular assessment had been issued
under section 143(2) of the Act. It is an accepted position that the
controversy involved in the present case is no longer res integra
inasmuch as the said issue stands concluded by a decision of the Apex
Court in Commissioner of Income-Tax vs. Gujarat Electricity
Board, 2003 Vol. 260 ITR 84 wherein the Court has held as
follows:-
“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)(i) 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).”
5. In
the light of the aforesaid, the impugned order of the Tribunal though
proceeds on a different set of reasoning, deserves to be confirmed.
6. Accordingly,
it is held that intimation under section 143(1)(a) of the Income Tax
Act could not have been issued after issuance of notice for regular
assessment under section 143(2) of the Act. The appeals are
accordingly dismissed.
(
D.A. Mehta, J. )
(
Harsha Devani, J. )
hki
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