C.N. Ramachandran Nair, J.@mdashWe have heard Senior counsel Sri. P.K.R. Menon appearing for the Appellant and Adv. Sri. Anil D. Nair
appearing for the Respondent. The question raised in the appeal filed by the Revenue is whether the Income Tax Officer can give up a rectification
proceedings initiated u/s 154 and then proceed to make an income escaping assessment u/s 147 of the Income Tax Act for the same assessment
year. The return filed was processed u/s 143(1) and in the intimation sent, deduction claimed on export profit u/s 80HHC was allowed in terms of
the claim. However, the Assessing Officer later noticed that excessive relief is granted while computing deduction u/s 80HHC in as much as while
computing the eligible relief, deduction was not made of 90% of the items of income falling under Explanation (baa) to Section 80HHC(4C).
Initially he proceeded to bring to tax the excessive relief granted by initiating rectification proceedings u/s 154. A notice in this regard was issued to
the Assessee u/s 154(3) of the Act on 28.3.2001. The Assessee raised objection against maintainability of rectification proceedings in the reply
filed to the notice. The Assessing Officer, therefore, did not proceed with rectification proceedings and the time for rectification of assessment
expired on 30.4.2004. However, the Assessing Officer later on 23.3.2006 issued notice u/s 148 proposing to bring to tax the escaped income
which happened on account of excess relief granted u/s 80HHC of the Act. In response to notice issued u/s 148, the Assessee filed a letter stating
that the original return filed may be treated as return filed pursuant to notice issued u/s 148 of the Act. Further, in the course of reassessment
proceedings initiated u/s 147, the Assessee raised various objections including maintainability of reopening u/s 147 by relying on decision of the
Madras High Court in Commissioner of Income Tax Vs. E.I.D. Parry Limited, . Besides this, the Assessee raised a contention that reassessment
cannot be made without a regular assessment or in other words, an intimation issued u/s 143(1) should not be subject to an income escaping
assessment. The Assessing Officer overruled the objections and completed the income escaping assessment u/s 147 of the Act, against which the
Assessee filed the appeal. The C.I.T.(Appeals) allowed the appeal on both the grounds, against which Revenue filed appeal before the Tribunal.
The Tribunal based on decision of the Supreme Court in Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd., held
that an intimation u/s 143(1)(a) itself is an assessment which could be revised through an income escaping assessment u/s 147 of the Act. The
Tribunal accordingly upheld this ground raised by the Revenue and held in their favour. However, the Tribunal still dismissed the appeal by
upholding the finding of C.I.T. (Appeals) based on decision of the Madras High Court above stated that after initiation of rectification proceedings
u/s 154, the Assessing Officer does not have jurisdiction to drop the same and proceed to make income escaping assessment u/s 147. It is against
this order the appeal is filed before us.
2. As already stated, both the first Appellate authority as well as the Tribunal declared the income escaping assessment as invalid only by virtue of
the fact that prior to initiation of proceedings for reassessment, the Assessing Officer issued notice for rectification of assessment u/s 154 and it is
after giving up the same that too, without issuing any express order, the assessment was reopened. Heavy reliance is placed on decision of the
Madras High Court above referred. After going through the order of the Tribunal and that of the first Appellate authority and after going through
judgment of the Madras High Court, we are unable to uphold the findings of the first Appellate authority or the order of the Tribunal on this issue.
In our view, if an assessment happens to be an underassessment or a mistaken order, the course open to the Assessing Officer is either to rectify
the assessment if it is a mistake falling u/s 154 of the Act or to make income escaping assessment u/s 147. Both these provisions are self-contained
provisions wherein conditions for invoking the powers and the procedure to be followed and the time limit within which orders are to be passed
are mentioned. In this case the Assessing Officer first felt that the excessive relief granted in the computation of relief u/s 80HHC is a mistake that
could be rectified u/s 154 and following the mandatory requirement contained u/s 153(3) of the Act, notice was issued to the Assessee. The
Assessee brought to the notice of the Assessing Officer that there is no apparent mistake in the proceedings issued and so much so, assessment
cannot be rectified. The Assessing Officer apparently accepted the objection raised by the Assessee and gave up the proceedings initiated u/s 154.
But Assessee was not informed that the proceedings initiated u/s 154 was dropped. However, after expiry of the period provided for rectification
of assessment u/s 154, the Assessing Officer initiated proceedings u/s 147 for making income escaping assessment by issuing notice u/s 148 of the
Act. Admittedly notice u/s 148 was issued within time and reassessment also was completed u/s 147 within the statutory period. The question to
be considered is whether the initiation of proceedings u/s 154 and the dropping of the same without issuing an express order in that regard will
affect the validity of re-assessment u/s 147.
3. On going through the decision of the Madras High Court, what we notice is apparently an income escaping assessment was first completed u/s
147 and during pendency of the appeal before the first Appellate authority, the officer initiated rectification proceedings u/s 154. The Madras High
Court held that when recourse open to the Assessing Officer to bring to tax escaped income is either by rectification or by way of income escaping
assessment, it is for the officer to choose between one of the two and proceed to pass one order. We do not think there can be any controversy
because for the very same purpose, the Assessing Officer cannot issue two proceedings, one u/s 154 and the other u/s 147. However we are
unable to uphold the principle of constructive res judicata made applicable by the High Court in income tax proceedings in respect of proceedings
one after another initiated by the Assessing Officer successively. The fact that the Assessing Officer initiated rectification proceedings u/s 154 does
not mean that he should stick to the same only and proceed to issue orders as proposed. The very purpose of issuing a notice to the Assessee is to
give him opportunity to raise objection against the proceeding which includes the Assessee�s right to question the maintainability of the
rectification proceedings. If the Assessee convinces the officer that rectification is not permissible, the Assessing Officer is absolutely free to give up
the same and see whether there is any other recourse open to him to achieve the purpose i.e. to bring to tax escaped income. In this case even
though the Assessing Officer did not issue any specific order dropping the proceeding initiated u/s 154 based on the objection filed by the
Assessee, the only inference possible after expiry of the time provided for completion of proceedings u/s 154 is that the Assessing Officer has
given up the proposal. Further, when a notice is issued u/s 148 for making income escaping assessment, the Assessing Officer obviously made it
clear that the proceedings u/s 154 is dropped and he proposes to proceed with reassessment u/s 147. In fact, even if the Assessing Officer had
proceeded with the rectification proceedings u/s 154 which was not sustainable, it was open to the Commissioner of Income Tax to exercise his
powers u/s 263, set aside the order issued u/s 154 and direct the Assessing Officer to consider income escaping assessment u/s 147 which the
Assessing Officer is free to initiate. In this case the Assessing Officer himself realised the mistake of initiating rectification proceedings and when he
noticed that the correct recourse open to him under the Act is to make an income escaping assessment, he is entirely free to do it and in our view,
there was nothing wrong in the Assessing Officer giving up rectification proceedings, though initiated by him based on reply filed by the Assessee
and then initiating an income escaping assessment by issuing notice u/s 148 within the statutory period. We, therefore, allow the appeal by vacating
the orders of the Tribunal and that of the first Appellate authority. Since there is no challenge on merits of the case i.e. with regard to withdrawal of
excessive relief granted u/s 80HHC, the reassessment completed u/s 147 will stand restored.