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TMI Blog2013 (6) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed under the Act? ii) Whether there can be any re-assessment under Section 11(a) in view of the admitted fact that no regular assessment had ever been made for the years 1994-95 to 1996-97? iii) Whether the provisions of Section 11(a) are applicable in the present case in view of the fact that there is no failure on the part of the assessee appellant to disclose material facts and the notice being issued in pursuance to the order and judgment of the Hon ble High Court against which SLP filed by the respondents is pending before the Hon ble Supreme Court of India? iv) That in view of the facts and circumstances of the case whether the provision of Section 11(a) or 11(b) or none of them of the Expenditure Tax Act, 1987 are appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver came to be dismissed on 2nd March, 2006. 4. After having perused these decisions, we have no manner of doubt that all the authorities have concurrently found, as of fact, that it was a case of non-disclosure, omission and failure on the part of the appellant to make returns regarding the items covered under the Act of 1987 in the returns as filed on the basis of which assessment was done by the Assessing Officer. 5. Reverting to the first substantial question as to whether the proposed action of re-assessment was barred by limitation, that will have to be answered on the basis of the purport of Section 11 of the Act of 1987. The same reads, thus: 11. Chargeable expenditure escaping assessment. If- (a) the Assessing Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, as aforesaid, 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 Assessing Officer in terms of notice served on the assessee on 18th February, 2002, cannot be barred by limitation. 8. To get over this position, the argument of the appellant was that it was not a case of omission or failure. It is not possible for us in these appeals to differ with the concurrent finding of fact recorded by the thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact even if another view was possible on the basis of the material on record. Taking any view of the matter, therefore, the substantial question of law formulated in clause (i) above will have to be answered in the negative against the appellant. 10. The second substantial question of law proceeds on the assumption that no regular assessment order was passed by the Assessing Officer for the assessment years 1994 -95 to 1996-1997. This assumption is founded on the observations found in the decision of the second appellate authority, in paragraph 9, wherein it is mentioned that though no regular assessment had been made by the Assessing Officer, the returns had been simply processed without any inquiry/scrutiny. The factual position, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit consideration in the fact situation of the present case. 12. That takes us to the third question formulated on the basis of which the appeal has been admitted. Even this question proceeds on the assumption that the appellant had not failed to disclose the material facts in the returns as filed. It is not open for us to entertain that contention in view of the concurrent finding of fact of three authorities to the contrary. 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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