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Rajasthan High Court · body

2001 DIGILAW 179 (RAJ)

Suparas Mal Kothari v. Union of India

2001-02-05

RAJESH BALIA, SUNIL KUMAR GARG

body2001
Honble BALIA, J.–Heard learned counsel for the parties. (2). The petitioner challenges the order Annexure-3 by which the assessee was intimated that adjustments made in the return submitted by him u/S. 139 of the Income Tax Act, 1961 for the assessment year 1993-94 showing a total income of Rs. 27,560/-. The adjustments sheet shows that a sum of Rs. 12,872/- has been added to the aforesaid disclosed income by making additions on account of the income allegedly received by minor children of the assessee u/S. 64(IA) of the Act of 1961. (3). The assessee has challenged the vires of Section 143(1)(a) inter alia on the ground that it permits the Assessing Officer to make adjustments to the demand of the assessee without notice to him and without hearing and also on the merit that the adjustments made under Section 143(1)(a) by the Assessing Officer do not per se fall within the ambit of Section 143(1)(a). (4). Having heard learned counsel for the parties, we are of the opinion that this petition must succeed on the short grounds of adjustments made by the Assessing Officer on the face of it does fall within the ambit of Section 143(1)(a). (5). Section 143 of the Act lays down the procedure for assessment of the income of the relevant assessment year. Once return has been filed, sub-section (1) of Section 143 envisages acceptance of the return as it is, provisionally, with apparent adjustments required to be made on the basis of information contained in the return itself without requiring the presence of the assessee or production by him or any evidence in support of the return. (6). In other words, it is not in the form of regular assessment after holding detailed enquiry into the correctness of the return submitted and verifications of the claim made by the assessee. It is a summary act on the basis of undisputed material submitted by the assessee, without factually disputing its correctness and applying thereto set principles of law on which possibly ordinary there cannot be any dispute. Under sub-section (3) regular assessment takes places after service of a notice for such assessment inviting attention to participate by affording him an opportunity of hearing as well as producing the evidence. (7). However, assessment u/S. 143(1)(a) does not attain finality immediately and adjustments made under Section 143(1)(a) are not without remedies in the assessee. Under sub-section (3) regular assessment takes places after service of a notice for such assessment inviting attention to participate by affording him an opportunity of hearing as well as producing the evidence. (7). However, assessment u/S. 143(1)(a) does not attain finality immediately and adjustments made under Section 143(1)(a) are not without remedies in the assessee. If he is aggrieved by such adjustments, sub-section (2) of Section 143(1)(a) provides procedure for getting it set right and offers such opportunity to the assessee against the adjustments which are thought necessary by the Assessing Officer to be made in the return submitted by him on the basis of material emanating from the return itself. In case the assessee is aggrieved with such adjustments which are required to be intimated to him, he is entitled to make an application within one month from the date of receipt of notice of demand issued in consequence of such assessment u/S. 143(1)(a) to the very same Assessing Officer raising objections to such adjustment. On receiving such application the Assessing Officer is bound to take recourse to regular assessment by issuing him notice of regular assessment under sub-section (2) of Section 143. Thus, against the alleged uncalled for adjustments made in the return, on an application being made he is bound to give opportunity of hearing to the assessee and form a regular assessment in terms of Section 143(3) and in that event assessment order u/S. 143(1)(a) gets replaced by regular assessment u/S. 143(3). In view of these clear provisions we do not find any merit in the contention that because no opportunity is afforded to the assessee against adjustments to be made u/S. 143(1)(a) and for that reason the provision be held ultra vires. It is true that an opportunity of hearing before any order adverse to a person is made is a necessary concomitant of fair procedure required of any authority to follow before he exercises his power to make such orders. But at the same time principles of natural justice are not cast in strait jacket formulae. Firstly, it is always subject to explicit provision of statute. The principles of natural justice in given case can be excluded by specific statutory provisions. Secondly, how and in what manner principles of natural justice are to be applied, even where the same are not so excluded, can also be regulated by statute. Firstly, it is always subject to explicit provision of statute. The principles of natural justice in given case can be excluded by specific statutory provisions. Secondly, how and in what manner principles of natural justice are to be applied, even where the same are not so excluded, can also be regulated by statute. A statutory provision does not impinge upon the constitutional guarantees merely because it provides particular stage at which and mode in which the opportunity of hearing is to be granted. Sec. 143(1)(a) provides for specific adjustments to be made by Assessing Authority without requiring the presence of assessee. Having so provided it further envisages its intimation to assessee of such adjustments and also envisages right of the assessee to object to such adjustments by making an application within one month from the date of service of such intimation. On raising of such objection the Assessing Authority is enjoined to take recourse to regular assessment. This procedure in our opinion amptly safeguards the interest of an affected assessee to have an opportunity to raise objection and to be heard in that regard before any assessment becomes final against him, intimation of adjustments made serving the purpose of show cause notice. Therefore, Sec. 143(1)(a) cannot be held bereft of element of reasonableness and suffer from vice of arbitrariness on procedural unreasonableness. We therefore reject the contention to the constitutional validity of impugned provision on the ground of Article 14. (8). However, what adjustments can be made while reframing adjustment u/S. 143(1)(a) without requiring the attendance of the assessee are itself enumerated in the statute. We therefore reject the contention to the constitutional validity of impugned provision on the ground of Article 14. (8). However, what adjustments can be made while reframing adjustment u/S. 143(1)(a) without requiring the attendance of the assessee are itself enumerated in the statute. The clause (b) of sub-section (1) which reads as under: ``(b) In making an assessment of the total income or loss of the assessee under clause (a), the Assessing Officer shall make the following adjustments to the income or loss declared in the return, that is to say, he (i) rectify any arithmetical errors in the return, accounts and documents, referred to in clause (a); (ii) [.....] (iii) [.....] (iv) give due effect to the allowance referred to in sub-section (2) of Section 32, the ducation referred to in clause (ii) of sub-section (3) of Section 32A or clause (ii) of sub-section (2) of Section 33 or clause (ii) of sub-section (2) of Section 33A or clause (i) of sub-section (2) of Section 35 or sub-section (1) of Section 35A or sub-section (1) of Section 35D or sub-section (1) of section (1) of section 35-E or the first proviso to clause (ix) of sub-section (1) of Section 36, any loss carried forward under sub-section (1) of Section 72 or sub-section (2) of Section 73 or sub-section (1) or sub-section (3) of Section 74 or sub-section (3) of Section 74A and the deficiency referred to in sub-section (3) of Section 80, as computed, in each case, in the regular assessment, if any, for the earlier assessment year or years. (9). The aforesaid clause (b) existed as aforesaid during the relevant assessment order in question. A perusal of the Section itself goes to show that no authority has been conferred on the Assessing Officer to make any adjustments by way of making additions u/S. 64 of any income not discharged by the assessee to be his own. Obviously the Assessing Officer has transgressed his authority under sub-section (1) of Sec. 143 for making addition of minors income in the income of the assessee without notice to him and without taking recourse to regular assessment proceedings. Whether income of any other person is includible in the income of assessee under Sec. 64 is not a matter enumerated in the list of adjustments that could be made without requiring the presence of the assessee. Whether income of any other person is includible in the income of assessee under Sec. 64 is not a matter enumerated in the list of adjustments that could be made without requiring the presence of the assessee. Sub-clause (i) refers only to correct arithmatical error in calculation. The adjustments made by additions u/S. 64(1A) is apparently not a mistake of calculation arithmatically. Sub-clause (iv) enumerately exhaustively the list of adjustments that are permissible to be made u/S. 143(1)(a). (10). Accordingly, this petition succeeds. The intimation slip (Annexure-3) along with notice of demand issued in pursuance thereof are quashed. However, the Assessing Officer shall be free now to take recourse to regular assessment proceedings, if he so desired. (11). There shall be no order as to costs.