9911796707
TMI Blog2008 (7) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... . M. Bhatt for the respondent. JUDGMENT The judgment of the court was delivered by D.A. MEHTA J. - This petition challenges notice dated 17-03-1999 issued by the respondent under section 148 of the Income Tax Act, 1961 ("the Act") for the Assessment Year 1992-93. The challenge is primarily on the ground that as the impugned notice has been issued beyond a period of 4 years from the end of the relevant Assessment Year, the burden is on the Revenue to establish that any one of the conditions stipulated by the proviso to section 147 of the Act stands fulfilled so as to vest the respondent-authority with jurisdiction, but the respondent-authority has failed to establish the jurisdictional facts. 2. The facts which are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed impugned notice by stating that there was no failure on the part of the petitioner to disclose truly and fully all material facts necessary for the assessment of the relevant Assessment Year. That the remaining two conditions regarding non filing of return and not responding to statutory notice are not applicable in the facts of the case. It was submitted that along with the return of income, the petitioner had placed a note which reads as under: "Notes: - There was a fire in the business premises of Ambica Vijay Cotton Ginning Pressing Factory on 25-4-1991. At that time, 200 bales of cotton belonging to me were burnt away. I had insurance policies to the extent of Rs. 8 lacs with New India Insurance Company. I had put up a clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion on part of the petitioner, the impugned notice was bad in law and be declared to be so. 6. On behalf of the respondent-authority, it was emphatically pointed out that as recorded in the reasons for reopening, the respondent-authority had come into possession of information pointed out by the internal audit that a sum of Rs. 3,22,160/- was the amount of insurance claim accepted by the insurance company. The petitioner-assessee had failed to show the said amount as income despite the fact that the petitioner maintained the books of account on mercantile system of accounting. Therefore, the impugned notice was rightly issued by the respondent-authority. In support of the submissions, reliance was placed on order dated 20-10-1993 made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Revenue any further. Firstly, the said order is dated 20-10-1993, while the relevant previous year in case of the petitioner had ended on 31-03-1992. Therefore, even without going further, the said order cannot be treated as a basis for forming an opinion that some income had escaped assessment. Such an opinion could not have been formed for the relevant assessment year, namely, assessment year 1992-93 considering the fact that the order of the Commission was not in existence during the relevant accounting period i.e. 01-04-1991 to 31-03-1992. Secondly, even if the said order is read, it is apparent that the Commission itself has recorded, after recording the assessment made by the surveyor of the insurance company, the complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993, as late as 15-10-1999, the insurance company had not accepted the claim of the petitioner and the matter was pending before the higher authorities. There was, therefore, no question of treating any part of the claim as income which could be stated to have accrued during the relevant previous year relevant to the assessment year 1992-93. 11. In the aforesaid set of facts and circumstances of the case, it is not possible to state that there was any omission to fully and truly disclose all material facts relevant for the assessment of the assessment year in question. In the absence of any failure on the part of the petitioner, the impugned notice dated 17-03-1999 issued under section 148 of the Act for assessment year 1992-93 could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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