{"id":13209,"date":"2010-05-04T00:00:00","date_gmt":"2010-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/cadila-vs-deputy-on-4-may-2010"},"modified":"2016-03-26T19:57:23","modified_gmt":"2016-03-26T14:27:23","slug":"cadila-vs-deputy-on-4-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/cadila-vs-deputy-on-4-may-2010","title":{"rendered":"Cadila vs Deputy on 4 May, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Cadila vs Deputy on 4 May, 2010<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/3580\/2010\t 12\/ 12\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 3580 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR. JUSTICE D.A.MEHTA  \nHONOURABLE\nMS. JUSTICE H.N.DEVANI\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n \n\nCADILA\nHEALTHCARE LTD - Petitioner(s)\n \n\nVersus\n \n\nDEPUTY\nCOMMISSIONER OF INCOME-TAX (OSD) OR HIS SUCCESSOR & 1 -\nRespondent(s)\n \n\n========================================= \nAppearance\n: \nMR RK PATEL\nfor Petitioner(s) :\n1, \nNOTICE SERVED BY DS for Respondent(s) : 1 - 2. \nMR MR BHATT,\nSR. ADVOCATE with MRS MAUNA M BHATT for Respondent(s) :\n1-2. \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR. JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\n                              and\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS. JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 04\/05\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
                                               (Per :\n<\/p>\n
HONOURABLE MS. JUSTICE H.N.DEVANI)<\/p>\n
1.\t\tRule.\n<\/p>\n
 Mrs. M.M. Bhatt, learned senior standing counsel is directed to
\nwaive service of rule on behalf of the respondents.  Since the
\ncontroversy involved in the present petition lies in a very narrow
\ncompass, the matter is taken up for final hearing today.\n<\/p>\n
2.\t\tThis
\npetition challenges notice dated 28th October, 2009 issued
\nby the respondent Assessing Officer under section 148 of the
\nIncome-tax Act, 1961 (the Act) and seeks the following reliefs:-\n<\/p>\n
Issue
\n\ta writ of certiorari and\/or a writ of mandamus and\/or any other
\n\twrit, direction or order to quash and set aside the impugned notice
\n\tdated 28.10.2009 under section 148 of the Income-tax Act, 1961
\n\tannexed hereto at Annexure ‘I’ along with preliminary order dated
\n\t05.03.2010 annexed hereto at Annexure ‘M’ for proceeding and
\n\tcompleting Reassessment proceedings.\n<\/p>\n
Pending
\n\tadmission, hearing, and disposal of this petition, ad-interim relief
\n\tbe granted and the Respondent be ordered to restrain from enforcing
\n\tcompliance of the impugned notice dated 28.10.2009 at Annexure ‘I’
\n\tand\/or taking any other steps in this regard including ex-parte
\n\torder or implementation of Preliminary order dated 05.03.2010 at
\n\tAnnexure ‘M’.\n<\/p>\n
Pending
\n\tadmission, hearing and till final disposal of this petition, stay
\n\tthe implementation\/operation of the notice and orders to restrain
\n\tthe Respondent from taking any further proceedings pursuant to the
\n\timpugned notices at Annexure ‘I’ including stay of operation of
\n\tPreliminary order at Annexure ‘M’.\n<\/p>\n
Award
\n\tthe cost of this petition.\n<\/p>\n
Grant
\n\tsuch other and further reliefs as this Hon’ble Court deems fit.\n<\/p>\n
3.\t\tThe
\npetitioner, a company filed return of income for assessment year
\n2004-2005 along with necessary documents like statement of income,
\naudited accounts, auditor’s reports in Form No.3CB, 3CD, 10CAAC and
\n29B.  The Assessing Officer issued notice under section 143(2) of the
\nAct and vide order dated 26th December, 2006, framed
\nscrutiny assessment under section 143(3). Being aggrieved on certain
\ncounts, the petitioner preferred appeal before Commissioner (Appeals)
\nto the extent it was aggrieved by the assessment order, which came to
\nbe partly allowed vide order dated 26th April, 2007 and
\norder giving effect to the said order was passed by the respondent
\nAssessing Officer under section 250 on 3rd October, 2007.\n<\/p>\n
4.\t\tThe
\nrespondent Assessing Officer issued notice dated 28th
\nOctober, 2009 under section 148 of the Act seeking to reopen the
\nassessment for the year 2004-2005.  The petitioner filed its reply to
\nthe said notice on 27th November, 2009 along with a copy
\nof the acknowledgment of the return filed before the Assessing
\nOfficer in response to the notice under section 148 and requested for
\na copy of the reasons recorded. The Assessing Officer furnished the
\nreasons for reopening the assessment vide letter dated 20th
\nJanuary, 2010.  The petitioner filed its objections against the
\nreasons for reopening on 8th February, 2010 which came to
\nbe disposed of vide order dated 5th March, 2010.  Vide
\nnotice dated 5th March, 2010 under section 143(2) of the
\nAct, the respondent called upon the petitioner to furnish certain
\ninformation in connection with the return of income filed for
\nassessment year 2004-2005. Being aggrieved the petitioner has
\napproached this Court by way of this writ petition under Article 226
\nof the Constitution of India seeking the reliefs noted hereinabove.\n<\/p>\n
5.\t\tMr.\n<\/p>\n
R.K. Patel, learned advocate for the petitioner has vehemently
\nassailed the impugned notice contending that the respondent Assessing
\nOfficer wants to reprocess the issues pertaining to section 115JB and
\ndeduction under section 80HHC of the Act which were already processed
\nthoroughly at the time of scrutiny assessment under section 143(3) of
\nthe Act.  It is submitted that the notice has been issued beyond a
\nperiod of four years from the end of the relevant assessment year for
\nwhich scrutiny assessment order under section 143(3) has already been
\nframed. It is submitted that at the time of framing the assessment
\norder the Assessing Officer has taken a conscious decision on both
\nthe issues of section 115JB and section 80HHC and that the reasons
\nrecorded for issuance of notice under section 148 indicate mere
\nchange of opinion on the same issues. It is submitted that there is
\nno failure on the part of the petitioner in either filing return or
\nfurnishing all particulars truly and completely; that the reasons
\nrecorded by the respondent are based on details and information filed
\nby the petitioner.  It is, accordingly, submitted that the issuance
\nof notice and initiation of proceedings under section 147 read with
\nsection 148 of the Act are violative of the proviso to section 147 of
\nthe Act.\n<\/p>\n
6.\t\tLearned
\nadvocate for the petitioner has further submitted that on the basis
\nof computation of total income, audit report under Form 29B and audit
\nreport under Form 10CAAC filed by the assessee along with its return
\nof income, the then Assessing Officer had finally assessed the income
\non book profit under section 115JB and allowed the claim for
\ndeduction under section 80HHC. Thus, there was due application of
\nmind on the part of the Assessing Officer while computing the book
\nprofit under section 115JB and allowing the deduction under section
\n80HHC claimed by the assessee company. Hence, reopening the case
\nunder section 147 on the very same issues is nothing but a change of
\nopinion on the same set of facts. Inviting attention to the
\naffidavit-in-reply filed by the respondent, it is submitted that the
\nrespondent has stated in the affidavit-in-reply that the petitioner
\ndid not disclose fully and truly all material facts necessary for its
\nassessment on the issues raised by it. Inviting attention to the
\nreasons recorded for reopening assessment, it is pointed out that the
\nreasons do not record that the assessee had not disclosed fully and
\ntruly all material facts.  It is submitted that the respondent
\nauthority having failed to show from the reasons recorded that there
\nis any material to treat any income as escaped income, or to indicate
\nthat the petitioner has failed to disclose fully and truly all
\nmaterial facts and in absence of any new information for any probable
\nescapement of income, the respondent lacks jurisdiction for reopening
\nassessment.\n<\/p>\n
7.\t\tOn
\nthe other hand, Mr. M.R. Bhatt, learned senior advocate for the
\nrespondent has vehemently opposed the petition. The learned counsel
\nhas placed reliance upon the affidavit-in-reply made by the
\nrespondent no.1 wherein, it has inter alia been stated that in
\nthe original assessment order, the claim of the deduction under
\nsection 80HHC had not been examined from the angle that as per the
\nprovisions of section 80IA(9), the petitioner had not reduced the
\ndeduction claimed under section 80IA before computing deduction under
\nsection 80HHC. That since on this issue, the petitioner’s claim of
\ndeduction had not been examined, no opinion was framed by the
\nAssessing Officer during the original assessment. That by claiming
\ndeduction which was not in accordance with the provisions of law, the
\npetitioner is deemed to have not disclosed fully and truly all
\nmaterial facts necessary for its assessment for that assessment year.
\nThat similarly, the reduced amount of deduction under section 80HHC
\nwould increase the amount of book profit of the petitioner as per
\nsection 115JB of the Act which had not been dealt with by the
\nAssessing Officer in the original assessment order.  As regards the
\ncontention raised by the petitioner that in absence of any new
\ninformation showing any escapement of income, the respondent lacks
\njurisdiction for reopening assessment, it is stated in the
\naffidavit-in-reply that the return of income filed by the petitioner
\nand the records of the assessment proceedings constitute tangible
\nmaterial to come to the conclusion that there was escapement of
\nincome from assessment.  It is, accordingly, submitted that the
\npetitioner having failed to disclose fully and truly all material
\nfacts necessary for its assessment, the respondent is justified in
\nreopening the assessment in exercise of powers under section 147 of
\nthe Act.\n<\/p>\n
8.\tSection
\n147 of the Act provides that if the Assessing Officer has reason to
\nbelieve that any income chargeable to tax has escaped assessment for
\nany assessment year, he may, subject to the provisions of section 148
\nto 153, assess or reassess such income and also any other income
\nchargeable to tax which has escaped assessment and which comes to his
\nnotice subsequently in the course of the proceedings under the
\nsection, or recompute the loss or the depreciation allowance or any
\nother allowance, as the case may be for the assessment year
\nconcerned. The proviso to section 147 provides that where an
\nassessment under sub-section (3) of section 143 or section 147 has
\nbeen made for the relevant assessment year, no action shall be taken
\nunder the section after the expiry of four years from the end of the
\nrelevant assessment year, unless  any income chargeable to tax has
\nescaped assessment for such assessment year by reason of failure on
\nthe part of the assessee to make a return under section 139 or in
\nresponse to a notice under sub-section (1) of section 142 or section
\n148 or to disclose fully and truly all material facts necessary for
\nhis assessment, for that assessment year.\n<\/p>\n
9.\tIn
\nthe facts of the present case, it is an admitted position that notice
\nunder section 148 of the Act for reopening the assessment for
\nassessment year 2004-2005 has been issued after the expiry of the
\nperiod of four years from the end of the relevant assessment year. In
\nthe circumstances, the proviso would come into play and it would be
\npermissible for the Assessing Officer to take action under section
\n147 only if the conditions laid down thereunder, viz., any income
\nchargeable to tax has escaped assessment (i) by reason of failure on
\nthe part of the assessee to make a return under section 139 or in
\nresponse to notice issued under section 142 or section 148; or (ii)
\nby reason of failure to disclose fully and truly all material facts
\nnecessary for his assessment, for that assessment year.  Insofar as
\nthe first condition is concerned, it is not even the case of the
\nRevenue that there is any failure on the part of the petitioner to
\nmake return under section 139 or in response to notice under section
\n142 or section 148. It is the case of the respondent Assessing
\nOfficer that income chargeable to tax has escaped assessment by
\nreason of failure on the part of the assessee to disclose fully and
\ntruly all material facts necessary for his assessment for that
\nassessment year.\n<\/p>\n
10.\tIt
\nis well settled as held by the Supreme Court in a catena of decisions
\nwhich have been referred to in the memo of petition that the duty
\nwhich is cast upon the assessee is to make a true and full disclosure
\nof the primary facts at the time of the original assessment.
\nProduction before the Assessing Officer of the account books or other
\nevidence from which material evidence could with due diligence have
\nbeen discovered by the Assessing Officer will not necessarily amount
\nto disclosure contemplated by law. The duty of the assessee in any
\ncase does not extend beyond making a true and full disclosure of
\nprimary facts. Once he has done that his duty ends. It is for the
\nAssessing Officer to draw the correct inference from the primary
\nfacts. It is no responsibility of the assessee to advise the
\nAssessing Officer with regard to the inference which he should draw
\nfrom the primary facts. If an Assessing Officer draws an inference
\nwhich appears subsequently to be erroneous, mere change of opinion
\nwith regard to that inference would not justify initiation of action
\nfor reopening assessment. The grounds or reasons which lead to the
\nformation of the belief contemplated by the proviso to Section 147 of
\nthe Act must have a material bearing on the question of escapement of
\nincome of the assessee from assessment because of his failure or
\nomission to disclose fully and truly all material facts.\n<\/p>\n
11.\tIt
\nmay, therefore, be germane to refer to the reasons for reopening the
\nassessment recorded by the Assessing Officer which read thus:\n<\/p>\n
“The
\nassessee company filed its return of income on 29.10.2004 declaring
\ntotal income of Rs.23,54,96,896\/-. The assessment was finalized u\/s.
\n143(3) determining totally income at Rs.24,19,86,700\/-. On
\nverification of the records, it is seen that the assessee company had
\nreduced an amount of Rs.3,68,02,210\/-, from book profit as per (viii)
\nof second proviso of Section 115JB of the Act instead of
\nRs.1,02,22,660\/- resulting into under assessment of Rs.2,65,79,550\/-.
\nFurther, it is seen that excess deduction u\/s. 80HHC has been allowed
\nat Rs.8,18,002\/-.\n<\/p>\n
In
\nthe light of the above fact, I am of the firm belief that the Income
\nto the tune of Rs.2,73,97,552\/- has escaped assessment within the
\nmeaning of section 147 of the IT Act, 1961. Looking at the facts, it
\nis a fit case of reopening the assessment for the assessment year
\nunder consideration as per the provisions of the section 147 of the
\nIT Act, 1961.”\n<\/p>\n
12.\tOn
\na plain reading of the reasons recorded for reopening the assessment,
\nit is apparent that what is stated therein is that in the opinion of
\nthe respondent the income referred to therein has escaped assessment.
\nThe reasons do not reflect that the petitioner has failed to disclose
\nfully and truly any material facts necessary for its assessment for
\nthe year under consideration. In the objections filed by the
\npetitioner against the notice under section 148 of the Act, it was
\nthe specific case of the petitioner that it had not defaulted in
\ndisclosing fully and truly all material facts necessary for the
\nassessment. However, the order disposing of the objections is totally
\nsilent in respect of the same. Thus, neither the reasons for
\nreopening the assessment nor the order disposing of the objections
\nindicate that there was any failure on the part of the petitioner to
\ndisclose fully and truly all material facts relevant for its
\nassessment.\n<\/p>\n
13.\tFrom
\nthe reasons recorded as well as the order disposing of objections and
\nthe affidavit-in-reply filed by the respondent, it is apparent that
\nit is the case of the respondent that in the original assessment
\norder, the claim of the deduction under section 80HHC of the Act was
\nnot examined from the angle that as per the provisions of section
\n80IA(9), the petitioner had not reduced the deduction claimed under
\nsection 80IA before computing deduction under section 80HHC.
\nSimilarly, according to the respondent, deduction under section 80HHC
\nwould increase the amount of book profit of the petitioner as per
\nsection 115JB of the Act which had not been dealt with by the
\npredecessor Assessing Officer in the original assessment order.
\nThus, in effect and substance, the respondent seeks to reopen the
\nassessment mainly on the ground that while making the original
\nassessment order, the predecessor Assessing Officer had not examined
\ncertain issues from the angle desired by the present Assessing
\nOfficer. The opinion formed by the successor Assessing Officer
\nregarding escapement of income, is not based upon any new material or
\nfacts having come to his notice which is evident from the
\naffidavit-in-reply made by the respondent wherein he has
\ncategorically stated that the return of income filed by the
\npetitioner and the record of proceedings constitute tangible material
\nto come to the conclusion that there was escapement of income from
\nassessment.  In the circumstances, it is apparent that the reopening
\nof assessment under section 147 is nothing but a change of opinion on
\nthe same set of facts. Thus, the petitioner is justified in
\ncontending that if notice is issued for reopening proceedings after
\nexpiry of four years from the end of the relevant assessment year and
\nno new material is there on the basis of which reopening of
\nproceedings is initiated, the jurisdiction is not validly assumed.\n<\/p>\n
14.\tFrom
\nthe facts emerging on record, there is nothing to indicate that the
\npetitioner has withheld any particulars.  The successor Assessing
\nOfficer has verified the same record to come to the conclusion that
\nthere is escapement of income which could have been done at the
\ninitial stage itself. There is nothing on record to indicate any
\nomission on the part of the assessee in fulfilling any obligation in
\nlaw. Whether the Assessing Officer while framing original assessment
\nhad failed to work out the tax liability correctly or not, the
\nassessee cannot be charged for any omission. In case the assessee had
\nlaid a claim to a particular amount, it was the job of the Assessing
\nOfficer to correctly compute the tax liability.  Merely making a
\nclaim cannot be stated to be non-disclosure of material facts so as
\nto vest in the Assessing Officer jurisdiction under section 147 of
\nthe Act.  Besides, as already noted hereinabove, the respondent seeks
\nto reopen the assessment after a period of four years from the end of
\nthe relevant assessment year.  In the reasons recorded, there is
\nnothing to indicate that the assessee has failed to disclose fully
\nand truly all material facts necessary for its assessment for the
\nyear under consideration. Hence, the ingredients of the proviso to
\nsection 147 of the Act are clearly not satisfied. In the
\ncircumstances, there is no justification for assumption of
\njurisdiction by the respondent Assessing Officer for reopening the
\nproceedings under section 147 of the Act. The entire proceedings
\ninitiated pursuant to the impugned notice dated 28th
\nOctober, 2009, therefore, are without jurisdiction and as such,
\ncannot be sustained.\n<\/p>\n
15.\t\tFor
\nthe foregoing reasons, the petition succeeds and is accordingly
\nallowed.  The impugned notice dated 28th October, 2009
\nunder section 148 of the Income-Tax Act, 1961 (Annexure ‘I’) as well
\nas preliminary order dated 05th March, 2010 (Annexure ‘M’)
\nare hereby quashed and set aside.  Rule is made absolute accordingly
\nwith no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t(
\nD.A. Mehta, J. )<\/p>\n
\t\t\t\t\t\t\t(
\nHarsha Devani, J. )<\/p>\n
hki<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Cadila vs Deputy on 4 May, 2010 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCA\/3580\/2010 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3580 of 2010 For Approval and Signature: HONOURABLE MR. JUSTICE D.A.MEHTA HONOURABLE MS. JUSTICE H.N.DEVANI ========================================= 1 Whether […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-13209","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nCadila vs Deputy on 4 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/cadila-vs-deputy-on-4-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Cadila vs Deputy on 4 May, 2010 - 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