Rajasthan High Court - Jodhpur

Commissioner, Of Wealth Tax And Anr vs The Lake Palace Hotels And Motels Ltd. ... on 3 January, 2024

Bench: Pushpendra Singh Bhati, Rajendra Prakash Soni

[2024:RJ-JD:285-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 D.B. Spl. Appl. Writ No. 123/2012

The Commissioner And Anr.
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                               Connected With
                 D.B. Spl. Appl. Writ No. 42/2012
Commissioner, Of Wealth Tax And Anr
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                 D.B. Spl. Appl. Writ No. 43/2012
Commissioner, Of Wealth Tax And Anr
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                 D.B. Spl. Appl. Writ No. 50/2012
Commissioner, Of Wealth Tax And Anr
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                 D.B. Spl. Appl. Writ No. 51/2012
Commissioner, Of Wealth Tax And Anr
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                 D.B. Spl. Appl. Writ No. 129/2012
Commissioner, Of Wealth Tax And Anr

                      (Downloaded on 06/01/2024 at 08:34:52 PM)
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                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent
                 D.B. Spl. Appl. Writ No. 130/2012
Commissioner, Of Wealth Tax And Anr
                                                                    ----Appellant
                                     Versus
The Lake Palace Hotels And Motels Ltd.
                                                                  ----Respondent


For Appellant(s)           :     Mr. L.K. Purohit, G.C.
                                 Mr. M.C. Bishnoi, G.C.
For Respondent(s)          :     Mr. Anjay Kothari



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

03/01/2024

1. Brief facts kept into consideration by this Court are that the

respondent-petitioner had filed the writ petitions challenging the

order of the Commissioner, Wealth Tax, Udaipur rejecting the

revision petition under Section 25 of the Wealth Tax Act, 1957

(hereinafter referred to as 'the Act of 1957') for the Assessment

Year 1997-98, 1999-2000, 2000-01, 2001-02, 2002-03, 2003-04

and 2004-05. The Commissioner, Wealth Tax, Udaipur held that

the revisions under Section 25 of the Wealth Tax Act against the

intimation issued under Section 16(1) of the Act of 1957 is not an

order, and therefore, the revision petitions under Section 25 of the

Act of 1957 were not maintainable.

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2. Thus, without going into the merits of the case, the only

issue which was required to be adjudicated before the learned

Single Judge was whether such revision petitions were

maintainable or not.

3. At the outset, Mr. Anjay Kothari, learned counsel appearing

on behalf of the respondent submits that the proposition of such

revisions having been sustainable in the eye of law have been

dealt within an analogous provision of Income Tax Act by the

Hon'ble Bombay High Court in the matter of Commissioner of

Income Tax Vs. Anderson Marine & Sons Pvt. Ltd. reported in

2003 SCC Online Bom 1253.

3.1 Learned counsel has relied upon the proposition (A) framed

in the case of Commissioner of Income Tax Vs. Anderson

Marine & Sons Pvt. Ltd., which reads as follows:

"(A) Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that there was no order under Section 143(1) of the Act, and that the Commissioner has no jurisdiction to revise such an intimation?"

3.2 Thereafter, proposition (A) has been dealt with in paragraph

7, which is reproduced hereunder:

"7. It is relevant to note that the Tribunal has accepted the argument canvassed on behalf of the assessee mainly on the reasoning that the intimation does not partake of the character of an order, as envisaged by the provisions of Section 143 of the Act. It has not based its decision on any other consideration. We shall examine the matter only in that context. The immediate question that arises is, what is the purport of Section 143 of the Act. Indeed, after the amendment of 1989 there has been a perceptible shift in the procedure regarding assessment. Section 143(1) is a

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provision regarding procedure of self-assessment. The Assessing Officer has to scrutinize the return as filed by the assessee and send intimation with regard to deficit tax or interest or for refund, as the case may be. The first proviso to Sub-section (1) postulates that even the acknowledgment of the return shall be deemed to be an intimation for the purposes of that provision where either no sum is payable by the assessee or no refund is due to him. The second proviso mandates that no intimation under the said sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made. The scheme of this provision is that the return as filed by the assessee should be accepted at its face value being self-assessment. However, the said sub-section is without prejudice to the provisions of Sub-section (2). Sub- section (2) of Section 143 provides that on furnishing of the return, if the Assessing Officer has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, he can serve notice on the assessee specifying such claim of loss, exemption, allowance or relief, and require the assessee on the specified date to produce or cause to be produced any evidence or particulars specified therein or on which the assessee may rely in support of such claim. However, this power by virtue of the proviso to Sub-section (2) is required to be exercised within 12 months from the end of the month in which the return is furnished. If the Assessing Officer invokes that power, then on further inquiry as referred to in Sub-section (3), he would make an order in writing allowing or rejecting the claim or claims specified in the notice given to the assessee and make an assessment determining the total income or loss accordingly, and determine the sum payable by the assessee on the basis of such assessment. Indeed, the order passed under Sub- section (3) of Section 143 is "regular assessment" within the meaning of Section 2(40) of the Act which defines "regular assessment" as meaning the assessment made under Sub-section (3) of Section 143 or Section

144. Section 2(40) which defines "regular assessment",

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was amended by the Finance Act, 1990, with effect from April 1, 1989, which corresponds to the amendment effected in Section 143(1) of the Act. In other words, the procedure for assessment has been simplified so as to dispense with a regular assessment order to be passed by the Assessing Officer in every case. The question is, whether acceptance or acknowledgment of the return filed by the assessee and intimation sent for the purpose of Section 143(1) is an assessment ? The answer, in our opinion, is in the affirmative. It is nevertheless "assessment". Assessment has been defined in Section 2(8) as "assessment includes reassessment". Section 143, as a whole, is a provision regarding assessment. The modalities and procedure for assessment have been provided for in Sub-section (1), which is different from the procedure under Sub-section (2) read with Sub-section (3) of the same provision. In both cases, it is a proceeding under the Act and the assessment accepted or made by the Revenue, as the case may be. In the latter case, i.e., Section 143(3), an order is passed; whereas in the former case, that is, Section 143(1), it is an intimation or acknowledgment. Nevertheless, the intimation sent by the Assessing Officer, in law, will have to be understood as having the force of an order on self-assessment. Only this construction would be purposive construction. If the argument of the assessee was to be accepted that there is no order passed by the Assessing Officer, that would mean that there has been no assessment on the return filed by the assessee. Such construction would militate against the interest of the assessee. The construction put by us is reinforced by the legal fiction provided in the amended provision, which postulates that "intimation" shall be deemed to be notice of demand issued under Section 156 and all the provisions of the Act shall apply accordingly. On a plain reading of Section 156 of the Act, notice of demand is served upon the assessee when any tax, interest, penalty, fine or other sum is payable in consequence of any order passed under the Act. To put it differently, issuance of notice of demand (read intimation

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under Section 143(1) of the Act), presupposes that it is in consequence of an order having been passed under the Act. In that sense "intimation" under Section 143(1) would partake of the colour of an order passed under the Act. Understood thus, interference under Section 263 of the Act by the Commissioner even against an intimation referable to Section 143(1) is open. We are persuaded to take this view because if the Legislature had intended to exclude the jurisdiction of the Commissioner in respect of proceeding under Section 143(1) of the Act, which is also an assessment and, therefore, in the nature of an order, it would have expressly made provision in that behalf, just as it has amended Section 154 of the Act by the Finance Act, 1999, in respect of the provision for "rectification of mistake" as a consequential amendment made to envelop the amended Section 143(1) of the Act. It will be useful to advert to Section 142 of the Act which enables the Assessing Officer to make inquiry before assessment, after the return of income under Section 139 of the Act is filed by the assessee. Section 142 precedes Section 143 and is not restricted only to the assessment order to be passed within the meaning of Section 143(3) of the Act. In other words, on the filing of the return under Section 139, if the Assessing Officer, has reason to believe that and inappropriate claim has been made by the assessee in the return, before sending the intimation under Section 143(1) he can make such inquiry and if he is satisfied in that inquiry about the inappropriate claim of the assessee, he can proceed in terms of Sub-section (2) and Sub-section (3) of Section 143. This appears to be the scheme regarding the procedure of assessment of the return filed by the assessee. Accordingly, as already observed by us earlier, in both situations, it is the decision of the Assessing Officer whether to send intimation or to proceed under Sub-section (2) of Section 143. That is surely a process of taking a decision in the matter. Sending the intimation being a decision of acceptance of self-assessment is, therefore, in the nature of the order passed by the Assessing Officer for the purpose of Section 263 of the Act.

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In the other situation, the action culminates with the order in writing under Section 143(3) of the Act, which is indubitably amenable to Section 263 of the Act."

3.3 Learned counsel has further shown that the order of the

Hon'ble Bombay High Court has been upheld by the Hon'ble Apex

Court in SLP (C) No.8520/2004 whereby the SLP was dismissed

on 05.05.2004 against the order of the Hon'ble Bombay High

Court in Anderson Marine (supra).

4. Mr. L.K. Purohit and Mr. M.C. Bishnoi, learned Government

Counsel appearing on behalf of appellants though press the

appeals, but are unable to refute the analogous provision being

dealt with by the Hon'ble Bombay High Court whereby the SLP has

been dismissed.

5. On examination of the record of the case, this Court finds

that the intimation order was passed under Section 16(1), the