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TMI Blog2005 (12) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... e materials placed before us and the precedents relied upon. The original assessment was completed under section 143(3) on 27-3-1992 on 'nil' income. In the computation of total income first the deduction under section 80HHC was allowed to the extent of Rs. 12,45,994. The balance of Rs. 2,32,758 was set off against the business losses. Total income was computed as 'nil'. The assessment was reopened by the Assessing Officer on 19-8-1998, on the basis of Apex Court decision in the case of CIT v. Kotagiri Industrial Co-operative Tea Factory Ltd. [1997] 224 ITR 604. In this case, it was held that the unabsorbed losses of earlier years are to be set off before allowing the deduction under Chapter VI-A. This decision is dated 5-3-1997. It was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, reason to believe that income chargeable to tax has escaped assessment, a notice under section 148 may be issued by him at any time within four years from the end of the assessment year for which the reassessment is to be made. 5. In the case of Fenner (India) Ltd v. Dy. CIT [2000] 241 ITR 672 (Mad.), it was held that mere escapement of income is insufficient to justify initiation of action under section 147 of the Act after the expiry of four years from the end of the assessment year. Such escapement must be by reason of failure on the part of the assessee either to file a return referred to in the proviso or to truly and fully disclose the material facts necessary for the assessment. Similar view was taken in the case of Revathy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant year. 8. Further he relied on the decision of the Hon'ble jurisdictional High Court in the case of Beverley Estates Ltd. v. CIT [1979] 117 ITR 302 (Mad.). In this case the, assessee owning coffee estates sold certain trees which had been planted and nurtured by it for providing shade to the coffee plants, as standing trees though they had fallen down due to natural causes. The claim of the assessee that the sale proceeds shown in the accounts as 'miscellaneous sales and receipts', were not taxable was accepted by the Assessing Officer. However, later, the Assessing Officer reopened the assessment and assessed the amount to capital gains tax on the basis of the decision of the Hon'ble Supreme Court. This was confirmed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed or such income has been made the subject of excessive relief or excessive loss or depreciation allowance computed, it could be deemed to be a case where income chargeable to tax has escaped assessment. There is absolutely no dispute on this aspect. The learned counsel for the assessee conceded that this could be treated as escaped assessment. But whether recourse to section 147 could be made beyond four years is the real question in the present appeal. Circumstances for extending limitation beyond four years do not exist in the facts of the present case. As such on the ground of limitation, assumption of jurisdiction under section 147 is bad. In the case of CIT v. Foramer France [2003] 264 ITR 566 (SC), it was held that if there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt adjudicates it. Inability to anticipate the view to be taken by the Apex Court cannot be termed as failure on the part of the assessee. Previous knowledge never becomes nonexistent. It goes on developing in the lap of time. Human knowledge is always improving and progressing. The world was assumed to be flat until it became known that the world is round. That does not mean that gravitation did not exist before Newton's discovery of the law of gravitation. Human knowledge is never static. Theory of evolution of Darwin does not make the previous knowledge non-existent. Human knowledge, as we have mentioned, is always progressing. So relativity was always there but we became aware only after Einstein. This is the basic difference between di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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