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TMI Blog2022 (2) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... OME-TAX [ 2013 (7) TMI 536 - GUJARAT HIGH COURT] that beyond a period of 4 years, retrospective amendment u/s. 115JB of the Act could not be a ground for reassessment. Such legal proposition requires no authority of law. We are of the considered view that all the relevant facts were available on record and it could not be said that at the time when the assessee filed return, he had failed to disclose fully and truly all material facts necessary for assessment because the amendment which was introduced retrospectively was not there. No hesitation to hold that there was no failure on the part of the assessee to fully and truly disclose all material facts to justify the reopening of the completed assessment. Therefore, we set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance warranty. The appellant contends that it is an ascertained liability and should be allowed. 5. CIT(A) has erred in confirming the order of the AO with regard to re-computing the book profit u/s. 115JB by adding performance warranty and provision for deferred tax liability which is wrong and bad in law. Such adjustments are not contemplated under section 115JB and therefore should be deleted. 6. The appellant prays that the order of CIT(A) was received on 25.4.2017 and appeal filed is within time. However, as the CIT(A) order is dated 9.3.2015, the delay due to non-receipt of order may kindly be condoned for which assessee is enclosing a separate affidavit. 3. The representatives of both the sides were heard at length, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to there being any failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment. In the balance sheet for the year ending 31.03.2005, there is a specific mention of provision for tax - current ₹ 7,45,000/- and deferred - ₹ 56,39,991/-. 7. Further, under Schedule XXV, under Selling and Distribution Expenses , warrantee expenses have been shown at ₹ 25,41,040.61 which has been further bifurcated in schedule forming part of the balance sheet and profit and loss account and under 'Warrantee Expenses' performance warrantee of ₹ 8,25,000/- has been mentioned. 8. All these facts were available before the Assessing Officer when he framed the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing authority what inferences, whether of facts or of law, should be drawn. 10. The bone of contention is the amendment to section 115JB of the Act by the Finance Act, 2009 w.r.e 01.04.2001 by which Explanation 1 to the section has been inserted. The book profit u/s. 115JB of the Act had to be reworked out. 11. In the aforementioned judgment of the Hon'ble Gujarat High Court [supra] the Hon'ble High Court has held that beyond a period of 4 years, retrospective amendment u/s. 115JB of the Act could not be a ground for reassessment. Such legal proposition requires no authority of law. 12. The Hon'ble High Court of Gujarat in the case of Danish Industries Ltd. 271 ITR 340 has held and observed as under: It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the considered view that all the relevant facts were available on record and it could not be said that at the time when the assessee filed return, he had failed to disclose fully and truly all material facts necessary for assessment because the amendment which was introduced retrospectively was not there. 14. The law cannot contemplate the performance of an impossible act. For this proposition, we draw support from the decision of the Hon'ble Jurisdictional High Court in the case of SIL Investment Ltd. 339 ITR 166. 15. The Hon'ble High Court of Bombay in the case of DIL ltd 343 ITR 296 has held as under: Held, allowing the petition, that the reasons for reopening contained no reference to there being any failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuation as well, there was ex facie no failure on the part of the assessee to disclose the material facts. The reasons disclosed to the assessee on July 11, 2011, in fact, merely indicated a reason to believe that income had escaped assessment. There was no reference whatsoever to the formation of an opinion that there was a failure on the part of the assessee to fully and truly disclose all material facts. Therefore, the basis on which the reopening was sought to be effected was contrary to law. 16. In light of the above judicial decisions and facts on record, we have no hesitation to hold that there was no failure on the part of the assessee to fully and truly disclose all material facts to justify the reopening of the completed asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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