Commissioner of Income Tax vs Sanmati Forest Industries Pvt. Ltd.

A.R. Tiwari, J.—At the instance of the Commissioner of Income Tax, Bhopal, the Tribunal has stated the case and referred the undernoted question, labelling it as of law, arising out of the order dated November 5, 1993, passed by the Tribunal in I. T. A. No. 226/Ind. of 1992 for the assessment year 1990-91 on application u/s 256(1) of the Income Tax Act, 1961 (for short "the Act"), registered as R. A No. 58/Ind. of 1994, for our opinion :--

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is correct in holding that an intimation u/s 145(1)(a) effecting adjustments of debatable nature is appealable within the meaning of Section 246 of the Income Tax Act, 1961 ?"

Briefly stated, the facts in brief are that the assessee is a private limited company. The assessee filed a return declaring "nil" income for the assessment year 1990-91. The Assessing Officer processed the return and issued an intimation u/s 145(1)(a) of the Act on May 16, 1991, making an adjustment to the tune of Rs. 2,97,434 and further adjustment of Rs. 3,674 and of Rs. 1,046 being depreciation claimed in excess. The adjustment of Rs. 3,575 was set off with the losses whereas a demand of Rs. 2,50,838 was raised in respect of the adjustment of Rs, 2,97,434 which included tax plus interest. Against this adjustment, the assessee filed an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) dismissed the appeal as untenable on the assumption that it was non-appealable u/s 246(1)(a) of the Act. The assessee then filed the appeal before the Tribunal. The Tribunal held that the order was appealable u/s 246(1)(a) of the Act. The Tribunal held that the adjustments were of debatable nature, additions have been made and demand has been raised without giving notice to the assessee and without opportunity of hearing. The Tribunal thus held that the order involved civil consequences and as such was appealable in terms u/s 246(1)(a) of the Act. The appeal was thus allowed for statistical purposes. The Department then filed the application u/s 256(1) of the Act on which the Tribunal stated the case and referred the aforesaid question.

We have heard Shri A.M. Mathur, learned senior counsel with Shri A. K. Shrivastava, for the applicant/Department, and Shri S.C. Bagdiya, learned senior counsel with Shri V.K. Jain, for the non-applicant/asses-see.

Section 246(1)(a) of the Act provides as under :

"246. Appealable orders--(1) Subject to the provisions of Sub-section (2), any assessee aggrieved by any of the following orders of an Assessing Officer (other than the Deputy Commissioner) may appeal to the Deputy Commissioner (Appeals) against such order-

(a) an order against the assessee, where the assessee denies his liability to be assessed under this Act, or an intimation under Sub-section (1) or Sub-section (1B) of Section 143, where the assessee objects to the making of adjustments, or any order of assessment under Sub-section (3) of Section 143 or Section 144, where the assessee objects to the amount of income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed."

The Tribunal held that the order was appealable u/s 246(1)(a) of the Act. On the facts, it is clear that the assessee objected to the making of adjustments. The position is now clarified by an amendment inserted by the Finance Act, 1994, with effect from June 1, 1994. By this insertion, it is clarified that an intimation under Sub-section (1) or Sub-section (1B) of Section 143 is also treated to be an order appealable u/s 246. In our view, this insertion has been made, although with effect from June 1, 1994, to clarify the position and cleared the doubt. The assessment year is 1990-91 but the fact remains that certain adjustments were made as a result of which the demand was raised without giving notice and hearing. Such an intimation thus assumed the nature of an order appealable u/s 246 of the Act. This is further clear from the insertion made in the aforesaid provisions.

In view of the aforesaid position, we hold that the Tribunal was justified in holding that such an intimation in the facts and circumstances of the case, is appealable within the meaning of Section 246 of the Act.

We, therefore, answer the question in the affirmative, i.e., in favour of the assessee and against the Department.

This miscellaneous civil case is thus disposed of in terms indicated above but without any orders as to costs.

Counsel fee for each side is, however, fixed at Rs. 750, if certified.

Transmit a copy of this order to the Tribunal.