Diva Singh, J.M. - (1.) THIS is an appeal filed by the assessee against the order dated 3/2/ 97 of Commissioner (Appeal)-XV, New Delhi pertaining to 1990-91 assessment year.
(2.) The grounds raised by the assessee read as under:- "That on facts and circumstances of the case and in law the Commissioner (Appeal)XV, New Delhi erred in upholding the order passed under section 154 charging additional tax of Rs, 9,76,899. 2. That on facts and circumstances of the case and in law the orders of the assessing officer Commissioner (Appeal) bad in law and void ab-initio." The relevant facts of the case are that the assessee filed its original return on 28.11.90. The date of sending first intimation without adjustment is 27.3.91. The date of filing revised return to revise the WDV on account of revised orders for earlier years under section 143(3) is 30.12.91 The date of issue of notice under section 143(2) is 5.8.92. The date of issuing revised intimation for adding Rs. 90,45,364 without charging additional tax in view of the decision of Delhi High Court in case of M/s. Modi Cement Ltd. is 15.3.93. The date of passing order under section 143(3) is 26.3.93. The assessing officer on 22/2/95 issued notice under section 154 of the Act seeking to rectify intimation under section 143(1A) dated 15.3.93 wherein a sum of Rs. 90,45,364 was disallowed on account of sales promotion. In view of the fact that no additional tax was charged in view of the decision of the Delhi High Court in the case of M/s. Modi Cement Ltd. The assessing officer issued rectification notice under section 154 in order to charge additional tax as a result of the amendment in 1993 in section 143(1A) with retrospective effect from 1.4.89 by the Finance Act, 1993. After considering the submissions of the assessee and rejecting the same, additional tax at the rate of 20 per cent on account of addition of Rs. 90,45,364 in revised intimation was calculated.
(3.) AGAINST this action of charging additional tax to the tune of Rs. 9,76,899, various submissions were made on behalf of the assessee in appeal before the first appellate authority. Firstly, it was contended that the intimation dated 15.3.93 was not valid since it was issued after a notice under section 143(2) of the Act for which, reliance was placed upon Modern Fibotex India Ltd. () 212 ITR 496 (Cal) and Gujarat Poly AVX Electronics () 222 ITR 140 (Guj).;