Coates of India Ltd. vs Deputy Commissioner of Income Tax and Others (No. 2)

Ruma Pal, J.—The assessment year in question is 1990-91. The facts of this case and the points urged are the same in all material respects as Matter No. 434 of 1994 (see Coates of India Ltd. Vs. Deputy Commissioner of Income Tax and Others (No. 1), . As in that case here there is an intimation u/s 145(1)(a) of the Income Tax Act, 1961 (referred to as "the Act"), followed by a regular assessment order u/s 143(3). Here too, the assessee''s claim of loss on account of fluctuation in exchange rates was allowed u/s 143(1)(a) and disallowed u/s 143(3). The petitioner preferred an appeal from the assessment order u/s 143(3).

The difference with Matter No. 434 of 1994 (see Coates of India Ltd. Vs. Deputy Commissioner of Income Tax and Others (No. 1), is that in this case the appeal has been decided on July 14, 1993, by the Commissioner of Income Tax (Appeals) with the claim on account of fluctuation of exchange rates being partially allowed. The petitioner has preferred a further appeal before the Tribunal.

However, again like Matter No. 434 of 1994 (see Coates of India Ltd. Vs. Deputy Commissioner of Income Tax and Others (No. 1), notice u/s 154 was issued on April 22, 1994, seeking to rectify the order u/s 143(1)(a) regarding "incorrect allowance of exchange amount".

For the reasons stated in the judgment delivered in Matter No. 434 of 1994 Coates of India Ltd. Vs. Deputy Commissioner of Income Tax and Others (No. 1), today the notice u/s 154 cannot stand.

In addition, Section 154(1A) is a complete bar to the issuance of such notice. The matter in respect of which the impugned notice has been issued has been considered and decided by the appellate authority partially in favour of the petitioner and partially in favour of the Department. Section 154(1A) prohibits the Assessing Officer from issuing a notice in respect of such a matter.

The submission of the respondents that there has been no decision in the matter because only a part of the petitioners'' claim was allowed is not acceptable. There is no warrant to read the word "decided" in the sense urged by the respondents. In fact, the authorities appear to give a very wide connotation to the word.

In Rohtak and Hissar Districts Electric Supply Co. (P.) Ltd. Vs. Commissioner of Income Tax, Delhi-I, , a Division Bench of the Delhi High Court said (at page 58) :

" The question is : What is meant by the words ''considered and decided'' which are used twice in the sub-section. In the present case, the question of depreciation and development rebate was taken as a specific ground in the memorandum of appeal before the Appellate Assistant Commissioner. Whether this ground was argued before the appellate authority or was abandoned or was not pressed we do not know. All that we know is that the Appellate Assistant Commissioner did not pass any order in respect of depreciation and development rebate. Can it be said on these facts that he did not consider and decide the two items ? We are clearly of the opinion that these two items will be deemed to have been considered and decided in the order of the Appellate Assistant Commissioner dated January 23, 1968. Was it the subject-matter of an appeal ?

This is the question. If the answer is ''yes'', the matter ought to be held as having been considered and decided."

( See also Rajputana Mining Agencies and Others Vs. Income Tax Officer, ''A'' Ward,

Therefore, the impugned notice for this reason also cannot stand and is set aside and quashed together with any proceedings which may have been taken thereunder.

Let a xerox copy of this judgment, duly signed by the Assistant Registrar of this court, be given to the parties upon their undertaking to apply for the certified copy of the judgment and on payment of usual charges.