TaxTMI 
TaxTMI 
2007 (11) TMI 125
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....sions of section 143(1A) sought to levy additional tax upon the assessee in this behalf and this was challenged in the writ petition. 3. Section 143(1) (a), (1A) of the Income-tax Act (retrospectively amended in 1993) reads as under "143(1) (a) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142,— (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee: Provided that in computing the tax or interest payable by, or refundable to, the assessee, the following adjustments shall be made in the income or loss declared in the return, namely:- (i) an....
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....e by the firm, association or body, as the case may be, or as a result of an order made under sub-section (3) of this section or section 144 or section 147 or section 154 or section 155 or sub-section (1) or sub-section (2) or sub-section (3) or sub-section (5) of section 185 or sub-section (1) or sub-section (2) of section 186 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264, or any order of settlement made under sub-section (4) of section 245D, passed sub sequent to the filing of the return referred to in clause (a), there is any variation in his share in the income or loss of the firm, association or body, as the case may be, or in the manner of inclusion of his share in the returned income, then,— (1) if any tax or interest is found due, an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly, and (ii) if any refund is due, it shall be granted to the assessee Provided that an intimation for any tax or interest due under this clause shall not ....
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....ssessee raised a preliminary objection in regard to the maintainability of appeal. It was canvassed that the assessee is a public undertaking of which 100 per cent. shareholding is with the State of Rajasthan. Since clearance of the High Powered Committee set up by the Central Government was not taken by the Revenue the appeal is incompetent and not maintainable. Reliance is placed on Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT [2004] 267 ITR 647 (SC) ; State of Rajasthan v. ITAT [2003] 259 ITR 686 (Raj); Union of India v. State of Rajasthan [ 2002]127 STC 142 (Raj) ; CIT v. Delhi Tourism and Transportation Development Corporation Ltd. [2005] 274 ITR 35 (Delhi); Union of India through Central Organisation Railway v. Union of India Through Secretary, Ministry of Finance [2006] 285 ITR 362 (All) ; Etah Gramin Bank v. CIT [2007] 290 ITR 636 (All) and CIT v. Neyveli Lignite Corporation Ltd. [2007] 293 ITR 362 (Mad). 6. Since this appeal is pending for adjudication for the last 14 years we now cannot ask the assessee to seek clearance of the High Powered Committee set up by the Central Government. The preliminary objection thus fails and stands rejected. &....
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....bsp; The provision has been made retrospective with effect from .April 1, 1989, and such penal clause cannot be inserted with retrospective effect. (ii) To hold the assessee guilty and to subject him to the additional tax on account of fiscal statute, being given retrospective effect will be unfair and unjust (vide CIT v. Hindustan Electrographite Ltd. [ 1998] 229 ITR 16 (MP). (iii) Reliance is also placed on Star India P. Ltd. v. CCE [2006] 280 ITR 321 (SC) ; National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India [2003] 260 ITR 548 (SC) ; Rai Ramkrishna v. State of Bihar [1963] 50 ITR 171 (SC) ; AIR 1963 SC 1667 ; Supreme Court Employees Welfare Association v. Union of India, AIR 1990 SC 334. 9. Having analysed the submissions we find that the learned single judge in the impugned judgment drew conclusions after placing reliance on the ratio indicated in Modi Cement Ltd. v. Union of India [1992] 193 ITR 91 (Delhi). This judgment was considered by the Supreme court in Asst. CIT v. J. K. Synthetics Ltd. [2001] 251 ITR 200 and it was observed as under (page 203) "The subst....