- (1.) BY the Court The petitioner is challenging the order Annexure P-1 dt. 26th Feb., 1990, passed under s. 143(1) (a) of the Income-tax Act, 1961 (for short the Act) and also striking down s. 143(1A) of the Act being unconstitutional and ultra views of the powers of the Parliament.
(2.) LEARNED counsel for the petitioner submitted that s. 143(1)(a) of the Act is ultra vires of the Constitution as it has not been provided therein that any notice will be issued to the assessee before any order is passed thereunder. According to the learned counsel, it is a matter of natural principle that as and when any adverse order is passed notice must be given. In this respect, reference was made to Central Inland Water Transport Corporation Ltd. vs. Brojo Nath AIR 1986 SC 1571 and Kantilal Babulal & Bros. vs. H.C. Patel (1968) 21 STC 174. It was also submitted that the loss could not be termed as income, and therefore, the said provision was bad in law. After hearing the learned counsel for the parties we do not find any substance in the arguments that the above said section is ultra vires of the Constitution in any manner.
(3.) IN the written statement filed on behalf of the Dy. CIT, a preliminary objection has been raised that the Direct Tax laws (Amendment) Act, 1987, w.e.f. 1st April, 1989 has amended s. 154 of IT Act whereby the assessee can approach the assessing authority to amend any intimation under s. 143(1)(a) of the Act if he is aggrieved against he same. It is clarified that under s. (III) to proviso to s. 143(1)(a) of the Act adjustment in expenditure claimed can be made by the assessing authority is respect of Prima facie inadmissible expenditure only this provision covers the intimation (Annexure p-1) sent by the assessing Authority and the petitioner has this alternative remedy under s. 154 of the Act if he has any grievance against the same Thereafter, the petitioner can file appeal, reference, etc., against the order passed by the assessing authority under s. 154 of the Act. This proposition could not be seriously contested on behalf of the petitioner. Order, Annexure p-1 is a prima facie assessment which could be shown to be wrong under s. 154 of the Act., Till it is finalised the assessment remains to be prima facie and is not final. Thus, the petitioner should approach the assessing authority under s. 15 of the Act and raise all objections available to him.;