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TMI Blog2016 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... from the office of the CIT(A) pertaining to the appeals for AYs 1990-91 and 1991-92. He also admits that the file for AY 1993-94 is not traceable. In other words, the Revenue has been unable to demonstrate that for AYs 1992-93 and 1993-94 the agreement with Sumitomo Corporation was not produced by the Assessee. - The fundamental condition for resorting to Section 147 in a case where reopening is sought to be done after expiry of four years after the expiry of the relevant assessment year in which the assessment orders were passed, is not fulfilled in the present case. - Decided in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... d up the returns for scrutiny. According to the Petitioner, in the course of the assessment proceedings, the agreement entered into by the Assessee with M/s. Sumitomo Corporation was produced before the AO. The AO passed the assessment order for AY 1992-93 on 17th April 1995 and for AY 1993-94 on 20th December 1995. A perusal of the assessment order for AY 1992-93 show that the AO was conscious of the fact that deduction had been claimed under Section 80-O of the Act. The discussion in the assessment order was focussed on whether the claim of the Assessee for 50% deduction in respect of the gross amount brought into India was justified. The AO, however, was not prepared to entertain the above claim of the Petitioner and restricted the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion for obtaining contracts for Sumitomo Corporation in respect of the Sardar Sarovar Dam and Teesta Canal Hydro Electrical Project from the Government of Gujarat and West Bengal State Electricity Board respectively. It was therefore concluded that the remittance brought into India for the relevant AYs 1992-93 and 1993-94 did not entitle the Assessee for relief under Section 80-O of the Act and that the Assessee was duty bound to have disclosed the nature of the remittance as well as the nature of services rendered by it. Accordingly, it was concluded that the Assessee had failed to furnish the full and true particulars of its source of remittance in respect of the services rendered and therefore the income liable to tax has escaped assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which was received from the office of CIT(A) where the appeals pertaining to AY 1990-91 and 1991-92 were heard and disposed-ff. During the course of appeals, the assessee, for the first time filed various agreements with M/s Sumitomo Corporation. The CIT(A), after examining the agreements came to the conclusion that the assessee has been paid by M/s Sumitomo Corporation for its help in getting the contracts for Sumitomo Corporation and the services in this regard, if any, rendered only in India. This conclusion of CIT (A) was based on these agreements, which were filed for the first time during the course of appellate proceedings and were filed by the assessee along with its return of income. The records of the CIT(A) and the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1992-93 and 1993-94? 16. Mr. Dileep Shivpuri, learned Senior Standing counsel for the Revenue, has referred to the order dated 2nd August 1999 passed by the CIT(A) in the appeal filed by the Assessee for AY 1990-91, where it was noticed that the agreement in question was produced for the first time in those proceedings before the CIT(A).However, that by itself would no means lead to the conclusion that the said agreement was not produced before the AO in the course of the assessment proceedings for AYs 1992-93 and 1993-94. 17. Compounding the difficulty is the fact that the files for AY 1993-94 is not traceable both according to the affidavits of the Assessee as well as the Revenue. The orders recorded by the AO in the assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or AY 1993-94 is not traceable. In other words, the Revenue has been unable to demonstrate that for AYs 1992-93 and 1993-94 the agreement with Sumitomo Corporation was not produced by the Assessee. 19. In the circumstances the fundamental condition for resorting to Section 147 in a case where reopening is sought to be done after expiry of four years after the expiry of the relevant assessment year in which the assessment orders were passed, is not fulfilled in the present case. 20. Consequently, the Court quashes the impugned notice dated 31st January 2001 issued under Section 148 of the Act to the Assessee seeking to reopen the assessments for the AYs 1992-93 and 1993-94. 21. The writ petition is allowed but in the circumstances with no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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