RAJENDRA PRASAD AND CO Vs. COMMISSIONER OF INCOME TAX
INCOME TAX APPELLATE TRIBUNAL
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V.K. Sinha, Accountant Member -
(1.) THIS is an appeal filed by the assessee against an order under Section 263 passed by the CIT setting aside an "assessment order" dated 29-12-1989. It was set aside because the provisions of Section 44AC of the Act were not taken into account while determining the income from liquor business and, therefore, the "assessment order" was erroneous and prejudicial to the interest of revenue.
(2.) The Id. counsel for the assessee has raised a preliminary legal objection which will be considered first. According to him, the Assessing Officer did not pass any "order", and, therefore, the CIT could not invoke the provisions of Section 263 in law.
The Id. counsel for the assessee has invited our attention to Section 263 (1) of the Act according to which the section could be invoked if the CIT "considers that any order passed therein by the Assessing Officer" is erroneous in so far as it is prejudicial to the interest of the revenue. He. therefore, submitted that it was necessary that there should be an "order" in existence passed by the Assessing Officer. Our attention has thereafter been invited to the provisions of Section 143(1)(a)(i) of the Act introduced w.e.f. 1-4-1989 which may be usefully reproduced below :-
143(1)(a). Where a return has been made under Section 139, or in response to a notice under Sub-section (1) of Section 142,-
(i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of Sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under Section 156 and all the provisions of this Act shall apply accordingly; and
The Id. counsel for the assessee submitted that, under the above provisions only "an intimation" was to be sent to the assessee, which was not the same thing as "an order". It was only because the intimation did not amount to an assessment order that there was a further deeming provision that the intimation shall be deemed to be a notice of demand issued under Section 156 of the Act.
(3.) IN this connection, our attention was also invited to Section 156 of the Act which is reproduced below :-
156. When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.
It was submitted that a notice of demand could be issued only in consequence of "any order" passed under this Act. However, it was only because the intimation under Section 143(1)(a)(Q did not amount to an order, that it became necessary to deem it to be a notice of demand issued under Section 156.;
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