SCA/1351/1998 3/ 3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1351 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA AND HONOURABLE MR.JUSTICE H.B.ANTANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= PURSHOTTAM P PATEL - Petitioner(s) Versus DY COMMISSIONER OF INCOME TAX - Respondent(s) ========================================= Appearance : MR SN SOPARKAR for Petitioner(s) : 1, MR MANISH R BHATT for Respondent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 30/06/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
1. This
petition challenges notice dated 16/02/1996 issued under Section 148
of the Income-Tax Act, 1961 (the ýSActýý) by the respondent
authority. The Assessment Year in question is 1985-1986. The
assessment under Section 143(3) of the Act was framed by the
Assessing Officer vide assessment order dated 11/03/1988. The
assessee claimed investment allowance to the tune of Rs. 29,64,477/-.
In principle, the Assessing Officer, after considering the
submissions of the assessee and after making inquiries, allowed the
claim in the following words;
ýSIn view of the above said
decision, I am of the opinion that the assessee is entitled for
investment allowanceýý
2. However,
the claim was restricted to the extent of positive income available.
3. Admittedly,
the impugned notice has been issued beyond a period of 4 years from
the end of the relevant Assessment Year on the basis of Supreme Court
decision in the case of COMMISSIONER OF INCOME-TAX Vs N.C.
BUDHARAJA AND Co. AND ANR., (1993)204 ITR 412. The reasons
recorded by the Assessing Officer read as under;
ýSThe
assessee is engaged in the construction business. The assessee
purchased certain machinery in the previous year relevant to
Assessment Year 1985-86 and claimed investment allowance under the
provisions of Section 32-A of the Income-Tax Act.
The
Hon’ble Supreme Court in the case of N.C. BUDHRAJA & Co. reported
in 204 ITR has held that the investment allowance is not allowable to
the persons engaged in the construction of dam, canals etc. In view
of this, the investment allowance was wrongly allowed to the assessee
in the year under reference. I have reasons to believe that the
income amounting to Rs. 29,67,477/- has escaped assessment on
account of wrong allowance of investment allowance to the assessee.ýý
4. It
is an accepted position between the parties that in similar fact
situation, this Court has, by a reasoned judgement rendered on
18/06/2008, decided the controversy between the parties in the case
of AUSTIN ENGINEERING CO. LTD Vs JOINT COMMISSIONER OF INCOME-TAX,
Special Civil Application No. 12050/2000 and cognate matters. Hence,
it is not necessary to set out the facts and contentions in detail.
5. For
the reasons stated in the aforesaid judgement dated 18/06/2008 in the
case of AUSTIN ENGINEERING CO. LTD (Supra), the impugned
notice dated 16/02/1996 is quashed for the Assessment Year 1985-1986.
The petition is allowed accordingly. Rule made absolute with no
order as to costs.
(D.A.
MEHTA, J.)
(H.B.
ANTANI, J.)
siji