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TMI Blog2018 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner being treated as the reconstituted writ petition. The records are accordingly reconstituted with a copy of the writ petition filed on behalf of the petitioner. The writ petition is taken up for final consideration. The writ petition is pending since 1990. The petitioner assails a notice dated March 6, 1990 issued under Section 263 of the Income-Tax Act, 1961 in respect of assessment year 1985-86. Learned senior advocate appearing for the petitioner submits that, Section 263 of the Act of 1961 requires the revisional authority to be satisfied that, there is an error in the order of assessment and that such error has resulted in prejudice to the revenue. He submits that, the impugned notice discloses two grounds which the revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, the provisions of the Act were amended with retrospective effect so as to permit an assessee to create reserves in the years where profits are posted. Therefore, according to him, such a ground is also not available to the revisional authority. In support of his contention that, the Act stood amended with retrospective effect, he refers to the Finance Bill, 1990 and the memorandum explaining the provisions of the Finance Bill, 1990. Learned advocate appearing for the department submits that, the petitioner has come up to the Writ Court against a show cause notice. The petitioner has statutory alternative remedy available. The issues raised by the writ petitioner in the present writ petition are such that, the same can be looked into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income Tax Act, 1961 came up for consideration in Hindusthan Motors Ltd. (supra). It is held there that, all costs incurred to sell goods simpliciter will not come within the meaning of the word "promotion". It goes on to say that, every type of expenditure incurred in the connection of sale of goods will not come within the phrase "advertisement, publicity and sales promotion". Only those expenditure which are in the nature of sales promotion will come within the mischief of Section 37(3A). Hindusthan Motors Ltd.(supra) was referred to in Bata India Ltd.(supra). It is held that, discount allowed to wholesale dealers from the listed retail price and commission paid to the selling agents did not come within the purview of Section 37(3A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assurance given by the Central Board of Direct Taxes through its circulars. Amendments were introduced to Section 37(3A) of the Act of 1961 with retrospective effect so as to negate the effect of Shri Shubhlaxmi Mills Ltd. (supra). On the strength of the amendments carried out by the Finance Bill, 1990 with retrospective effect, the second ground is also not available to the revisional authority. Indo Asahi Glass Co. Ltd. (supra) is a case where a writ petition was dismissed by the Trial Court as well as by the Appeal Court on the ground of availability of alternative remedy. The Supreme Court, in the facts of that case, finding that, there was a voluntary disclosure scheme under which the writ petition had applied, allowed to the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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