Deputy Commissioner of Income Tax (Assessment) vs Mysore Paper Mills Ltd.

K.L. Manjunath, J.—This appeal is by the Revenue raising the following substantial question of law:

(1) Whether the Assessing Officer can impose additional tax when the loss is reduced after adjustment?

The assessee filed its return showing the loss. Thereafter, an intimation was issued u/s 143(1)(a) of the Income Tax Act, 1961 on July 16, 1991, showing certain adjustment thereby reducing the loss declared by the assessee and called upon the assessee to pay an additional tax. Aggrieved by the same, an appeal was filed by the assessee before the Commissioner of Income Tax (Appeals), which appeal by corrigendum dated November 28, 1991, held that the assessee was not liable to pay the additional tax. Accordingly, the appeal was allowed. Against which an appeal was filed by the Revenue before the Tribunal. The same has been dismissed by holding additional tax/penalty was not to be levied u/s 143(1A) of the Act.

Aggrieved by the concurrent findings, the present appeal is filed.

So far as the question of law raised by the appellant in this appeal is squarely covered by the judgment of the Supreme Court in Assistant Commissioner of Income Tax Vs. J.K. Synthetics Ltd., . Accordingly, we have to answer the question of law in favour of the Revenue.

However, we have noticed from the records that the respondent-assesses has raised a contention before the Commissioner of Income Tax (Appeals) that the very issuance of intimation u/s 143(1)(a) of the Income Tax Act, was not maintainable in view of the notice issued by the Assessing Officer on June 26,1991, u/s 143(2) of the Income Tax Act.

The assessee had contended before the Commissioner (Appeals) that the intimation u/s 143(l)(a) is dated July 16, 1991. But much prior to issuance of such intimation, a notice u/s 143(2) of the Income Tax Act was issued. Therefore, an intimation u/s 143(1)(a) of the Act was not justifiable. This fact has been referred to by the Commissioner (Appeals) in paragraph 4 of its corrigendum order dated November 28, 1991.

The contention of the assessee was not considered by the Commissioner (Appeals) in view of the findings of the Commissioner (Appeals) that no additional tax could be levied by the Assessing Officer.

Since the very jurisdiction of the Assessing Officer in sending the intimation u/s 143(1)(a) of the Act was raised by the assessee, we are required to remand the matter to the Commissioner of Income Tax (Appeals) for fresh consideration in regard to the jurisdiction of the Assessing Officer in issuing an intimation u/s 143(1)(a) of the Act when he had already issued a notice u/s 143(2) of the Act.

Accordingly, this appeal is allowed and the matter is remanded to the Commissioner of Income Tax (Appeals).