9911796707
TMI Blog2001 (2) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... d Asian Paints India Ltd., has presented a Matador van to the assessee for the outstanding performance shown by the assessee. The value of the van is Rs. 1,05,000. This has been credited to the capital accounts of the partners in the ratio of sharing of profits. Bank pass book scrutinised. No suspicious credits." The assessment was reopened later on under section 147 and the single head of controversy concerned an amount of Rs. 1,05,000 which in the opinion of the Department came within the ambit of the concept "income from business" for that assessment year and was therefore includible. This amount comprised the value of a Matador van which had been given to the assessee as an incentive by Asian Paints Limited. There is no dispute about the circumstances under which this vehicle was received by the assessee. As per the note made by the Income-tax Officer on the earlier occasion this had been received by them for outstanding performance and the value thereof was Rs. 1,05,000. The assessee had credited the capital accounts of the partners in the ratio of sharing of profits and the Income-tax Officer had accepted the transfer to the capital account which was why it was not included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the receipts by the assessee that emanate out of the business performance are in cash or kind, they, come clearly within the definition of "concept of income" within the framework of the Income-tax Act. His submission was that the transfer to the capital account of the partners was clearly erroneous and that this would effectively be a reopening of the case on the basis of a reconsideration of the law which is totally and entirely different from a simple review which may be undertaken merely because the earlier findings appear to be incorrect or require a reconsideration. Undoubtedly it is a very fine distinction which learned counsel has propounded and it did require a detailed examination of the law particularly the decisions that have been rendered by the various courts from time to time. We do concede that the Supreme Court in the decision reported in A. L. A. Firm v. CIT [1991] 189 ITR 285, which was heavily relied upon by learned counsel has done almost a total review of the principles involved and Mr. Indra Kumar submitted that the Supreme Court has in this decision very clearly opened up the possibilities for the Department to include an item that has either escape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents' learned counsel drew our attention to several decisions which we shall briefly refer to : (i) The Supreme Court in the case referred to in CIT v. Dinesh Chandra H. Shah [1971] 82 ITR 367, has very clearly cautioned the courts while assessing cases of this category into not being confused by situations wherein a mere change of opinion is evident and is not based on any additional information. We need to point out here that the section in the form in which it was then applicable did very specifically refer to additional information. (ii) Next, reliance was placed on the decision referred to in H. Noronha v. ITO [1982] 133 ITR 199 (Kar), and the respondent's learned counsel highlighted the fact that the learned single judge of this court while considering the ambit and scope of sections 147 and 148 of the Act had occasion to point out that a reassessment would only be justified at a point of time after the earlier assessment, provided there was fresh material or in other words, the material that was not earlier on record when the original assessment order was completed. In this decision, the learned single judge had occasion to analyse the law in some depth and to poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to situations wherein, in the absence of any of these factors, a reopening of the assessment is contemplated. There can be no quarrel with regard to the basic proposition that has been canvassed by Mr. Indra Kumar on behalf of the Department but, where he has run into some difficulties is with regard to the factual position in the present case. What is coming heavily in his way is the note that has been referred to by the Income-tax Officer at the stage of reassessment and by the subsequent authorities also. This note envisages two positions, the first being that the aspect of whether the amount of Rs. 1,05,000 which comprised the value of the Matador van had come to the notice of the Income-tax Officer or whether it had escaped his attention is required to be assessed. From the note in question, two things are clear, viz., that this particular head had come to the attention of the Income-tax Officer when he was finalising the assessment, that he has applied his mind to the contention raised on behalf of the assessee that it could justifiably be transferred to the head of capital and that he has also accepted this position. Undoubtedly, the main contention that has been pressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
