- (1.) 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.
(2.) HEARD Mr. Khaitan. Perused the petition. It appears that the point was already dealt with by our Division Bench in CIT vs. Coventry Spring & Co. Ltd. (2002) 177 CTR (Cal) 579 : (2002) 257 ITR 632 (Cal). The question which was decided was : "Whether, on the facts and in the circumstances of the case and in law, the Tribunal is justified in holding that intimation issued under s. 143(1)(a) cannot be rectified under s. 154 after issue of notice under s. 143(2) -
(3.) IT appears that the Division Bench came to the conclusion that it was possible for the AO to issue a subsequent notice under s. 143(2) and to hear the assessee further before finalizing the assessment. The Court also held that the rectification procedure under s. 154 is not consistent with the issuance of a s. 143(2) notice and on the given facts it came to the conclusion that the AO passed an order of regular assessment on the same day as he sought to pass an order under s. 154 rectifying his initial intimation under s. 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 Gujarat High Court in Gujarat Poly -Avx Electronics Ltd. vs. Dy. CIT (1996) 135 CTR (Guj) 141 : (1996) 222 ITR 140 (Guj). It appears from the decision of the Hon'ble Supreme Court in CIT vs. Gujarat Electricity Board (2003) 181 CTR (SC) 28 : (2003) 260 ITR 84 (SC), 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 s. 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 AO determining the income, it is open to the assessee to ask for rectification under s. 154. Apart therefrom, the provisions of s. 143(1)(a) indicate that the intimation sent under s. 143(1)(a) shall be without prejudice to the provisions of sub -s. (2). The legislature, therefore, intended that, where the summary procedure under sub -s. (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 -s. (2) of s. 143. The converse is not available; a regular assessment proceeding having been commenced under s. 143(2), there is no need for a summary proceeding under s. 143(1)(a)." ;