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TMI Blog2014 (11) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... , the rest was a matter of computation - the assessee disclosed all the material facts - as held in Calcutta Discount Co. Ltd. v. ITO [1960 (11) TMI 8 - SUPREME Court] - the duty is on the assessee to disclose all the facts which had a bearing on the question of a claim - if the AO had doubt about the validity of the claim in law, during scrutiny the same could have been examined - beyond the period of four years, it would not be open for the AO to disturb such claim in the absence of failure on the part of the assessee to disclose fully and truly all material facts – Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 24985 of 2006 - - - Dated:- 19-3-2014 - MR. AKIL KURESHI AND MS SONIA GOKANI, JJ. FOR THE APPELLANT : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se No. 2. 3 of the notes forming part of the return of income. In this regard, during the course of the reassessment proceedings for the assessment year 2000-01, it was seen that part of the GDR issue was used for making investments, which includes the investment of ₹ 96.62 crores in UTI. On scrutiny of clause 5 of schedule 6 to the balance-sheet (page 20), investments in UTI and other funds mentioned at ₹ 96.64 crores. As such, the assessee has not utilized the full amount of the GDR issue for the purpose of investment in the new project. Hence, the admissible deduction per year was worked out at ₹ 13,50,000 on the basis of 2.5 per cent. of the cost of project for which the assessee had utilized the proceeds of the GDR is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, on which the notice is based, is the petitioner's claim of deduction under section 35D of the Act. According to the Assessing Officer, there was excess deduction under the said head. Counsel submitted that this was the fifth year of the amortised deduction spread over ten assessment years. After scrutiny in the earlier years, the claim was accepted. Excess claim was made and allowed. Necessary facts were not produced by the assessee. Sufficiency of the reasons recorded by the Assessing Officer cannot be gone into by this court at this stage. 6. Having thus heard the learned counsel for the parties, we may recall that notice for reopening has been issued beyond the period of four years from the end of the relevant assessment year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular assessments. 8. In our opinion, the assessee made full and true disclosure of all the material facts. Had this been the first year of assessment for the claim of deduction under section 35D of the Act, we would have been tempted to examine the learned counsel for the Revenue's contention that fully and truly all the material particulars were not produced along with the return or in the notes forming part of the return. In such context, Explanation (1) to section 147 of the Act would assume significance. Such Explanation provides that production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l facts. As held and observed by the Supreme Court in the case of Calcutta Discount Co. Ltd. v. ITO reported in [1961] 41 ITR 191 (SC), the duty is on the assessee to disclose all the facts which had a bearing on the question of a claim. 9. In the context of the above decision, the assessee's disclosure that the company had incurred expenditure for the first time in the year 1995-96, which was also allowed after regular assessment and that in the present year, a tenth of the total amount recognised in the year 1995-96 is claimed under section 35D of the Act, in our opinion, was a sufficient disclosure of material facts. If the Assessing Officer had doubt about the validity of the claim in law, during scrutiny the same could have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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