Swamy Distributors vs Asstt. Commissioner of Income Tax

The petitioner in this petition is a partnership firm carrying on business, according to it, in consumer goods.

In this petition, the petitioner has prayed for quashing the intimation dated 30-9-1992, issued by the first respondent u/s 143(1)(a) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), a copy of which has been produced as Annexure-B. The petitioner has also prayed for. striking down the provisions of sections 143(1)(a) and 143(1A) of the Act and also amendment introduced by Finance Act, 1993, and for other reliefs.

Sri Sarangan, learned senior counsel appearing along with Sri Ramabhadran for the petitioner, submitted that the provisions of sections 143(1)(a) and 143(1 A) of the Act are liable to be declared as unconstitutional in view of the fact that as the provisions of sections 143(1)(a) and 143(1A) do not provide for an opportunity being given to an assessee before issuing an intimation u/s 143(1)(a) and an order u/s 143(1A). According to Sri Sarangan since the valuable rights of an assessee would be affected, it is implied that an opportunity is required to be given to an assessee, who is likely to be affected by such intimations/orders. He further submitted that in the instant case the prima facie adjustment made by the first respondent disallowing the allowance claimed by the petitioner is totally erroneous in law. It is his further submission that, though the petitioner made an application u/s 154 for rectification, the same was disallowed without any justification and the appeal filed against the said order also came to be disallowed by the second respondent. He further submitted that the second respondent has disallowed the appeal filed by the petitioner following his earlier order, which came to be set aside by the Tribunal, Bangalore Bench, by its order dated 6-11-1996, in IT Appeal No. 1110 (Bang) of 1993, dated 6-11-1996, in the case of Smt. Ajith Kour v. Asstt. CIT. Therefore, according to the learned senior counsel, since the order passed by the second respondent in similar matter came to be set aside by the Tribunal taking the view that it was not permissible for the original authority to take the view that the assessee (assessing officer) was not justified in disallowing the claim for the deduction of loss and also in charging additional tax in his intimation issued u/s 143(1)(a), the orders impugned are liable to be quashed.

Sri M.V. Seshachala, learned counsel appearing for the department, tried to support the orders impugned and submitted that since the returns filed by the petitioner disclosed that there was no trading activity during the relevant period, the first respondent was fully justified in passing the order Annexure-13. He further submitted that there is absolutely no merit in the submissions made by the learned senior counsel with regard to the validity of sections 143(1)(a) and 143(1A) of the Act. He also submitted that having regard to the object for which sections 143(1)(a) and 143(1A) of the Act came to be incorporated in the Act, it is unnecessary for the authorities to give any opportunity to the assessee before passing orders/issuing intimations under the provisions of the said sections.

I am of the view that the intimation and also the orders impugned are liable to be quashed on the ground that the respondents have seriously erred in law in taking the view that the allowance claimed by the petitioner is prima facie inadmissible. It is not in dispute that in similar circumstances, the Tribunal, in the case of Ajith Kour (supra) has taken the view that the department was not justified in taking the view that the allowance claimed by the assessee in that case was prima facie inadmissible. The Tribunal has referred to the decision of this court in the case of GOD GRANITES Vs. CENTRAL BOARD OF DIRECT TAXES and Others, wherein this court has taken the view that under the guise of effecting an adjustment u/s 143(1)(a), the assessing officer cannot decide debatable questions. Therefore, when under similar circumstances, the assessing authority and the Tribunals have taken different views, I am of the view that the order impugned in this petition, passed by the second respondent disallowing the claim of the petitioner on the ground that it is prima facie inadmissible, is erroneous in law. The said divergent views expressed clearly show that the questions involved are debatable. In the light of my above conclusion, I am of the view that the petitioner is entitled for the relief sought for in this petition. Therefore, I find it unnecessary to decide the submission made by Sri Sarangan with regard to the constitutional validity of sections 143(1)(a) and 143(1 A) of the Act. Therefore, I make the following order :

(i) rule issued is made absolute. The impugned intimation Annexure-B dated 30-9-1992, passed by the 1st respondent is hereby quashed.

(ii) Since the original, intimation Annexure-B has been quashed, the authorities are directed not to enforce either the order passed by the authorities u/s 154 of the Act or the order made in appeal filed against the said order.

(iii) The 1st respondent is directed to issue notice as provided u/s 143(2) of the Act and thereafter proceed to pass appropriate orders in accordance with law.

In terms stated above, the writ petition is disposed of.

28-10-1997

In this application, the petitioner has sought for correction of the typing error that has crept into the order in para 3 of the order at p. 4 learned counsel for the petitioner points out that at the end of para 3 of the order, that is about fifth line from the bottom of para 3 of the order instead of the words "assessing authority", the same has been typed as "assessee" and, therefore, an order correcting the said order is required to be made.

I find the request made is justified. Therefore, in the place where it is typed as assessee" in para 3 of the order, i.e., about five lines from the bottom of para 3 the words "assessing authority" may be substituted and the word "assessee" may be deleted. If the certified copy of the order has already been issued and the same is made available to the office, the necessary corrections may be carried out. Accordingly, this I.A. is disposed of.