9911796707
TMI Blog2012 (7) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... o anticipate any future amendments made in the enactment and file its return accordingly - when the amended provisions of section 80HHC of the Act were not in existence at the relevant time when the return came to be filed, no such failure can be attributed to the assessee - in favour of assessee. - Special Civil Application No.29122 of 2007 - - - Dated:- 2-7-2012 - Akil Kureshi and Harsha Devani, JJ. For Appellant: Mr Tushar P Hemani For Respondent: Mrs Mauna M Bhatt JUDGEMENT Per: Harsha Devani: 1. By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 30th March 2007, issued under section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed in compliance of the notice under section 148 of the Act and also requested the respondent to supply a copy of the reasons recorded while issuing the impugned notice. Such reasons came to be furnished on 1.05.2007, pursuant to which the petitioner filed its objections which came to be rejected vide order dated 8.10.2007, giving rise to the present petition. 4. Mr. Tushar Hemani, learned advocate for the petitioner assailed the impugned notice by submitting that the same has been issued much beyond a period of four years from the end of relevant assessment year and, as such, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) , wherein on the question whether the assessee had failed to disclose fully and truly all material facts necessary for assessment, the court held that it was obvious that when the assessee had filed its return in 1983, it could not assume that such a legislative amendment was going to be made in the year 1986 with retrospective effect from the year 1974. Therefore, by no stretch of imagination could it be said that in the year 1983 when the assessee had filed the return claiming investment allowance on the capitalization of interest paid after the date on which the machinery was installed and put to use, the assessee had failed to disclose all material facts. 5. On the other hand, Mr. M. R. Bhatt, Senior Advocate, learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be germane to refer to the reasons recorded by the Assessing Officer which read thus: The assessee company filed its return of income declaring total income at Rs.269,55,240/on 30/11/2000 under normal provision of the IT Act. The assessee has shown book profit u/s 115JA of the Act of Rs.100,11,622/. In the return assessee had claimed deduction u/s chapter VIA as under: 80G Rs.62,500/- 80HHC Rs.711,09,051 Further it is also noticed that in the computation of the deduction u/s 80 HHC of the IT Act, assessee claimed deduction u/s 80HHC which include deduction claimed @ 90% on Export incentives totaling to Rs.49,24,297/. Further, total export turnover for the period is Rs.63,70,68,125/i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the Assessing Officer since there is nothing on record which shows that the assessee has fulfilled the conditions laid down by the amended provisions of section 80HHC, the case is required to be reopened under section 147 of the Act for necessary verification. Thus, in essence and substance, it appears that the Assessing Officer seeks to reopen the assessment for the purpose of verification as to whether or not the petitioner has fulfilled the conditions laid down by the amended provisions of section 80HHC. However, in the entire reasons recorded, there is no assertion that there is any failure on the part of the petitioner to disclose fully and truly all material facts. Such assertion is only found in the order disposing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in existence at the relevant time when the return came to be filed, no such failure can be attributed to the assessee. 9. In the aforesaid premises, it is apparent that the basic requirement for reopening the assessment after the expiry of the period of four years from the end of the assessment year, namely, that there is escapement of income chargeable to tax by reason of failure on the part of the petitioner to disclose fully and truly all material facts is not satisfied, thereby rendering the impugned notice under section 148 of the Act, unsustainable. 10. For the foregoing reasons, petition succeeds and is, accordingly, allowed. The impugned notice dated 30th March 2007, issued under section 148 of the Act, is hereby quashed and set ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
