TaxTMI 
TaxTMI 
2022 (8) TMI 794
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....earned Commissioner of Income Tax (Appeals) is not justified in not adjudicating on the ground of appeal for allowance of credit for surcharge and education cess totaling to Rs. 2,82,548/- while computing MAT set off under Section 115JAA. 3. Without prejudice to Ground No. 1, the Learned Commissioner of Income Tax (Appeals) IS not justified in not adjudicating on the ground of appeal opposing increase in interest under Sections 234B and 234C by Rs. 42,803/-. 4. For these grounds and for such other grounds that may be adduced at the time of hearing of the appeal, the issues raised in this appeal may be considered". 3. In this regard, the learned AR submitted that it was the case of the assessee that the learned CIT (A) dismissed the appeal of the assessee on the ground that no rectification order is permissible to be passed under Income Tax Act 1961 after passage of 4 years from the date of passing of the order under section 154(7). The learned AR drew our attention to the intimation issued by the Department in this regard, which was issued under section 143(1) of the Act . It was submitted by the learned AR that in law, there is a distinction between the intima....
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....ing the liability of the assessee or the deductor ^72[or the collector], the Assessing Officer shall make any refund which may be due to such assessee or the deductor ^72[or the collector].] (6) Where any such amendment has the effect of enhancing the assessment^73 or reducing a refund ^74[already made or otherwise increasing the liability of the assessee or the deductor ^75[or the collector], the Assessing Officer shall serve on the assessee or the deductor ^75[or the collector], as the case may be] a notice of demand in the prescribed form specifying the sum payable^76, and such notice of demand shall be deemed to be issued under section 156 and the provisions of this Act shall apply accordingly. (7) Save as otherwise provided in section 155 or sub-section (4) of section 18677 no amendment under this section shall be made after the expiry of four years ^78[from the end of the financial year in which the order^79 sought to be amended was passed.] ^80[(8) Without prejudice to the provisions of sub-section (7), where an application for amendment under this section is made by the assessee ^81[or by the deductor] ^82[or by the collector] on or after the 1st ....
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.... very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from 1-10-1991, and subsequently with effect from 1-6-1994, by the Finance Act, 1994, and ultimately omitted with effect from 1-6-1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between 1-6-1994, to 31-5-1999, and under section 264 between 1-10-1991, and 31-5-1999. It is to be noted that the expressions "intimation" and "assessment order" have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes "the computation of income", sometimes "the determination of the amount of tax payable" and sometimes "the whole procedure laid down in the Act for imposing liability upon the tax payer". In the scheme of things, as noted....
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....itation provided u/s 154 of the Act is only for rectification and the order passed by the learned CIT (A) is correct as the application for rectification was passed beyond the period of 4 years. The learned DR also submitted that if by the logic of the assessee, the intimation is not an order, then no appeal should lie against the intimation before the learned CIT (A). 7. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We find the learned CIT (A) in para 6 of the order has observed as under: "6. The Decision: The appeal originates from the order of the CPC dated 27.03.2017 pertaining to the rectification request filed by the appellant on 08.03.2017, with regard to the order of CPC in order no. CPC/1112/16/11 12874011 dated 28.01.2012. The order of the CPC pertains to A.Y. 2011- 12, the return of which was filed on 30.11.2011. The order was passed in F.Y. 2011-12, the rectification of the same has to be filed within four years i.e., till 3Ist March, 2016, whereas the rectification application was filed on 06.03.2017. Therefore, the date of ....
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....ntended results by conferring the powers to Assessing Officer to rectify any mistake apparent from record in respect of intimation beyond a period of 4years. 9. The learned AR submitted during the course of argument that the plenary literal interpretation is required to be given to the statute in the case of unambiguity. However, we disagree with the interpretation as canvased by the learned AR for the assessee. In a recent decision the Hon'ble Supreme Court in the case of Eera vs. State (Govt. of NCT of Delhi) reported in (2017) 15 SCC 133 has laid down the parameters of creative interpretation. The sum and substance of the creative interpretation was that literal interpretation is to be avoided if it leads to an absurdity. The interpreting authority is required to think what was the purpose for which the statute was enacted and shall keep think like a legislature and find out what the statute wanted to correct/address the issues. After understanding the statute in the above manner the statute is to interpretated and decide the issue. The relevant portion of the order read as under: 21. Instances of creative interpretation are when the Court looks at both the liter....
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....statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression "Prize Chit" in Srinivasa [(1980) 4 SCC 507 : (1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Court's construction." [para 33] 23. Indeed, the modern trend in other Commonwealth countries, including the U.K. and Australia, is to examine text as well as context, and object or purpose as well as literal meaning. Thus, in Oliver Ashworth Ltd. v. Ballard Ltd., [1999] 2 All ER 791, Laws L.J.....
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.... is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.' The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Comrs v Adamson [1877] 2 App Cas 743 at 763, [1874-80] All ER Rep 1 at 11. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, e.g. social welfare legislation and tax statutes may have to be approached somewhat differently. For these slightly different reasons I agree with the conclusion of the Court of Appeal that s 1(1) of the 1990 Act must be construed in a purposive way." (at 122, 123)66 We find the same modern view of the law in....