2013 (6) TMI 383 - HC - Income Tax

Re-assessment proceedings - Whether the proposed action was barred by limitation? - Held that - In the present case, the concurrent finding of fact is that it is a case of omission and failure of the appellant to disclose the liability to pay expenditure tax in respect of chargeable expenditure for the relevant period of assessment years 1994-95 to 1996-97. On this finding the case would be clearly covered by clause (a) of Section 11. As a concomitant of that finding, the reassessment opened by the AO in terms of notice served on the assessee on 18th February, 2002, cannot be barred by limitation. Against assessee. Whether no regular assessment order was passed by the AO for the assessment years 1994 -95 to 1996-1997 - argument of the appellant that the assessment could not have been completed without giving notice to the assessee as required under Sub Section (1) of Section 9 of the Expenditure Tax Act, 1987- Held that - Submission of assessee clearly over-looks that the requirement of notice would be necessary if the Assessment Officer was to disagree with the returns already filed by the assessee either wholly or in part. However, when AO proceeds to accept the returns filed by the Assessee as it is, the requirement of issuing notice would not arise. Without issuing such notice the assessment could still be completed by the AO as has been done in the present case vide entry dated 30.3.1998 in the order sheet. Once it is found that the assessment was already completed by the Assessing Officer it would follow that it is open to the Assessing Officer to take recourse to re-assessment by invoking powers under Section 11 if the fact situation so required. The fact that the SLP filed by the Department was pending in the Supreme Court would not give licence to the Appellant not to disclose the taxable items in the returns as filed as the operation of the Act was not interdicted by the pendency of the said proceedings. Taking any view of the matter, therefore, the question under consideration will have to be answered against the Appellant.

Summary

Issues:
1. Whether re-assessment under Section 11(a) for the years 1994-95 to 1996-97 is barred by time.
2. Whether re-assessment under Section 11(a) is applicable when no regular assessment was made.
3. Whether Section 11(a) provisions are applicable when there is no failure to disclose material facts.
4. Applicability of Section 11(a) or 11(b) of the Expenditure Tax Act, 1987.

Analysis:

Issue 1:
The appellant failed to disclose material facts necessary for assessment, leading to re-opening of assessment under Section 11(a). The court found that the reassessment was not barred by limitation as it fell under clause (a) of Section 11, which does not have a specified time limit.

Issue 2:
The assumption that no regular assessment was made for the relevant years was challenged. The court clarified that the Assessing Officer accepted the returns as filed, completing the assessment. As the requirement of notice arises only when disagreeing with the returns, the absence of notice did not invalidate the assessment process.

Issue 3:
The appellant argued against the failure to disclose material facts, but the court upheld the concurrent finding that there was indeed non-disclosure. The pendency of an SLP in the Supreme Court did not excuse the appellant from disclosing taxable items. Section 11(a) was deemed applicable in this case.

Issue 4:
Considering the findings of non-disclosure, Section 11(a) was found to be appropriately invoked by the Assessing Officer. The court dismissed the argument that there was no failure to disclose relevant information, affirming the validity of reassessment under Section 11(a).

The court dismissed the appeals, emphasizing the importance of disclosing all material facts for accurate assessment and upholding the Assessing Officer's authority to reassess based on non-disclosure. The argument on the maintainability of the appeal was also addressed, with the court declining to interfere due to the lack of merit in the contentions raised.