THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA R.C.NO.83 OF 1998 ORDER: (Per the Hon’ble Sri Justice V.V.S.Rao) The Income Tax Appellate Tribunal Hyderabad Bench ‘A’, Hyderabad, referred the following two questions for opinion of this Court at the instance of the Revenue under Section 256(1) of the Income Tax Act, 1961 (“the Act” for brevity). 1. Whether on the facts and in the circumstances of the case, the ITAT is justified in treating the intimation u/s.143(1)(a) as non-est and holding that the assessing officer cannot rectify the mistake apparent from record u/s.154? 2. Whether on the facts and in the circumstances of the case, order u/s.154 can be treated as intimation u/s.143(1)(a) read with Section 292B, when it is in substance and effect in conformity with or according to the intent and purpose of the I.A. Act, 1961, particularly when the disallowance was based on the accounts and documents accompanying the return of income only? The respondent (hereafter, the assessee) filed return of income for the assessment year 1989-90. The same was processed under Section 143(1)(a) of the Act and the assessing officer sent an intimation dated 22.03.1990. While doing so, the direction under Section 48(2) of the Act was not given while computing the capital loss. Subsequently, in purported exercise of power under Section 154 of the Act, the assessing officer passed an order dated 19.03.1992 reducing the capital loss from Rs.2,16,000/- to Rs.1,44,200/-. Aggrieved thereby, the assessee went in appeal before the CIT(A). The same was dismissed. The assessee was, however, successful before the appellate Tribunal. By order dated 29.10.1996, the assessee’s appeal was allowed holding that the rectificatory order under Section 154 of the Act to modify intimation under Section 143(1)(a) of the Act is without jurisdiction. Thereupon the Revenue sought the two questions referred to hereinabove. We have heard the Junior Standing Counsel for Income Tax. Insofar as the first question is concerned, today we have considered similar question in R.C.No.257 of 1996 and answered the reference in favour of the assessee and against the Revenue. Accordingly, in this R.C. also, we answer the first question in affirmative in favour of the assessee and against the Revenue. Insofar as the second question is concerned, a perusal of the order of the appellate Tribunal as well as the application under Section 256(1) of the Act being R.A.No.12/Hyd/97 would show that no such question was raised and therefore, reference of the question is not proper. We decline to answer question No.2. In the result, the reference is answered as above, without any order as to costs and the Reference Case shall stand disposed of accordingly. _______________ (V.V.S.RAO, J) ____________________ (B.N.RAO NALLA, J) 28th December 2011 RRB