{"id":224503,"date":"2010-06-14T00:00:00","date_gmt":"2010-06-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/act-vs-the-assistant-commissioner-of-on-14-june-2010"},"modified":"2019-02-23T12:28:00","modified_gmt":"2019-02-23T06:58:00","slug":"act-vs-the-assistant-commissioner-of-on-14-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/act-vs-the-assistant-commissioner-of-on-14-june-2010","title":{"rendered":"Act vs The Assistant Commissioner Of on 14 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Act vs The Assistant Commissioner Of on 14 June, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud, J.P. Devadhar<\/div>\n
                                              1\n\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n                      ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                  \n                           WRIT PETITION NO.892 OF 2010\n\n\n\n\n                                                 \n    3i Infotech Limited, a company\n\n\n\n\n                                             \n    incorporated under the Companies\n                             \n    Act, 1956 and having its registered\n\n    office at Tower No.5, 3rd to 6th floor,\n                            \n    International Infotech Park, Vashi,\n\n    Navi Mumbai - 400 075                                  .....Petitioner\n           \n        \n\n\n\n                 Versus\n\n\n    1.    The Assistant Commissioner of\n\n\n\n\n\n          Income-tax - 10(3), having his\n\n          office at Aaykar Bhavan,\n\n\n\n\n\n          M.K. Road, Mumbai - 400 020\n\n\n\n    2.    The Commissioner of Income-tax - 10\n\n          having his office at Aayakar Bhavan,\n\n          M.K. Road, Mumbai - 400 020.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 16:00:34 :::\n                                                  2\n\n    3.     The Union of India, through\n\n\n\n\n                                                                                      \n           the Secretary, Department of\n\n\n\n\n                                                              \n           Revenue, Ministry of Finance,\n\n           North Block, New Delhi - 110 001                            .....Respondents.\n\n\n\n\n                                                             \n    Mr.Percy   J.   Pardiwala,   Senior   Advocate   with   Mr.Atul   K.   Jasani   for   the \n    petitioner.\n\n\n\n\n                                                \n    Mr.Vimal Gupta for the respondents.\n                               \n                                               CORAM : Dr.D.Y. Chandrachud &\n                              \n                                                          J.P. Devadhar, JJ.   \n<\/pre>\n
                                                DATE     : 14 June, 2010.\n           \n\n\n    ORAL JUDGMENT  (Per Dr.D.Y. Chandrachud, J.)\n        \n\n\n\n    1.            Rule.     With   the   consent   of   Counsel,   rule   is   made   returnable \n\n\n\n\n\n<\/pre>\n
    forthwith.  By consent of Counsel for both the parties, the petition is taken up <\/p>\n
    for hearing and final disposal.\n<\/p>\n
    2.            The dispute in these proceedings arises out of a notice issued by <\/p>\n
    the   first   respondent   on   18   March   2009   by   which   an   assessment   for <\/p>\n
    assessment year 2002-2003 is sought to be re-opened in pursuance of the <\/p>\n
    provisions of Section 147 of the Income Tax Act, 1961.   The notice for re-\n<\/p>\n
    opening the assessment is beyond a period of four years from the end of the <\/p>\n
    relevant assessment year.\n<\/p>\n
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\n                                                  3<\/span><\/p>\n
    3.            The   assessee   filed   a   return   of   income   for   assessment   year <\/p>\n
    2002-2003   on   30   October   2002   declaring   a   loss   of   Rs.46.96   lakhs   and <\/p>\n
    computed tax under Section 115JB of Rs.1.94 crores.  An order of assessment <\/p>\n
    was passed on 7 March 2005 under Section 143(3).  On 18 March 2009, the <\/p>\n
    Assessing Officer issued a notice under Section 148.  The reasons on the basis <\/p>\n
    of which the assessment is sought to be re-opened are stated in the notice <\/p>\n
    and are as follows :\n<\/p>\n
                 “The assessee has filed its  original  return of income on <\/p>\n
           31-10-2002.   Assessment u\/s. 143(3) was completed 7-3-2005
\n           computing income at Rs.9,79,34,208\/-.\n<\/p><\/blockquote>\n
                  It is seen from the assessment records that as per Clause <\/p>\n
           2.18   of   Notes   of   Accounts   the   company   has   engaged   ICICI
\n           Infotech Inc. USA, the  wholly owned subsidiary for  providing <\/p>\n
           market   development   and   sales   support   in   the   US   for   project
\n           software   and   implementation   services   for   onsight   projects
\n           effective July 1, 2001.   As per the arrangement, the company
\n           remunerates Infotech Inc. on a cost plus basis for the aforesaid <\/p>\n
           services   and   all   the   project   revenues   accrue   to   the   company.
\n           Out   of   such   remuneration   amount   payable   towards   market
\n           development   and   support   expenses   of   Rs.218.54   million   has
\n           been treated as deferred over a period of two years as in the
\n           opinion   of   the   management   benefit   of   such   expenses   would <\/p>\n
           accrue   in   future   also.     The   company   has   amortized   Rs.
\n           9,36,63,726\/- out of the said amount of Rs.21,85,48,694\/- in
\n           the Accounts and also claim deduction of Rs.21,85,48,694\/- in
\n           computation   of   income   while   adding   back   the   amortized
\n           amount.     However,   the   said   expenditure   should   have   been
\n           treated   as   capital   expenditure   and   the   assessee   has   wrongly
\n           claimed the deduction towards such expenses.\n<\/p><\/blockquote>\n
                  Thus there is an escapement of income to this extent of
\n           Rs.21.85 cr.\n<\/p><\/blockquote>\n
           2.     Further, it is also seen that the assessee has arrived at Loss
\n           on   sale   of   long   term   investment   amounts   to   Rs.2.4   million <\/p>\n
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\n                                                     4<\/span><\/p>\n
           whereas the amount added back to the income is only Rs.1.85
\n           million.\n<\/p><\/blockquote>\n
                 Thus there is an escapement of income to this extent of
\n           Rs.60 lacs.\n<\/p><\/blockquote>\n
           3.    It is seen from Annexure 8 to Clause 20 & 22(b) of Form
\n           3CD that an amount of Rs.31,32,627\/- has been debited to P &
\n           L Account on account of prior period expenses which are not
\n           allowable as per provisions of I.T. Act.   The same should have <\/p>\n
           been added back.\n<\/p><\/blockquote>\n
                 Thus there is an escapement of income to this extent of
\n           Rs.31.32 lacs.\n<\/p><\/blockquote>\n
           4.     The assessee has debited Rs.126.80 million on account of
\n           interest   on   fixed   loan   to   P   &   L   Account   which   has   not   been <\/p>\n
           capitalized.   The company has capitalized Rs.21.89 million  in
\n           P.Y. 00-01 on the same account.\n<\/p><\/blockquote>\n
                  Thus there is an escapement of income to this extent.\n<\/p><\/blockquote>\n
                  Thus   there   is   a   failure   on   the   part   of   the   assessee   to
\n           disclose   fully   and   truly   all   material   facts   necessary   for   his
\n           assessment,   for   the   said   assessment   year.     I   have   reasons   to <\/p>\n
           believe that the income to the extent of Rs.22.22 cr. has been
\n           escaped the assessment.”\n<\/p><\/blockquote>\n
    4.             The petitioner furnished its objections to the re-opening of the <\/p>\n
    assessment.     An   order   of   assessment   was   passed   on   30   November   2009 <\/p>\n
    without disposing of the objections.  In a petition instituted before this Court <\/p>\n
    under Article 226 of the Constitution, a Division Bench by its order dated 10 <\/p>\n
    March   2010   observed   that   in   failing   to   deal   with   the   objections   of   the <\/p>\n
    assessee, the Assessing Officer had not complied with the directions of the <\/p>\n
    Supreme   Court   in  G.K.N.   Drive   Shaft   (India)   Limited   V\/s.   Income   Tax  <\/p>\n
    Officer1.  While setting aside the order of re-assessment, this Court directed <\/p>\n
    the Assessing Officer to pass an order on the objections of the assessee.   On <\/p>\n
    1 259 ITR 19 (SC)<\/p>\n
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\n                                                   5<\/span><\/p>\n
    remand, the Assessing Officer has not dealt with the merits of the objections <\/p>\n
    holding that it is at the stage of assessment that he would be dealing with <\/p>\n
    these objections.\n<\/p>\n
    5.             In assailing the exercise of the jurisdiction under Section 147, <\/p>\n
    the learned Counsel appearing on behalf of the assessee submitted that : (i) <\/p>\n
    There was a full disclosure by the assessee of all the material facts necessary <\/p>\n
    for the assessment.   The re-opening of the assessment is after four years of <\/p>\n
    the end of the relevant assessment year.  There was no failure to disclose fully <\/p>\n
    and   truly   all  the   material   facts   necessary  for   the   assessment.     Hence,   the <\/p>\n
    condition   precedent   to   the   exercise   of   the   jurisdiction   to   re-open   the <\/p>\n
    assessment beyond four years has not been fulfilled; (iii)  Four reasons have <\/p>\n
    weighed with the Assessing Officer in re-opening the assessment.  On each of <\/p>\n
    the four issues, there was a full and true disclosure of all the material facts by <\/p>\n
    the assessee for the assessment.  As a matter of fact, the reasons which have <\/p>\n
    been furnished for re-opening the assessment are based on the assessment <\/p>\n
    record and on the disclosures made by the assessee.   Hence, the condition <\/p>\n
    precedent to a valid exercise of the power to re-open an assessment beyond <\/p>\n
    four years does not exist in the present case and hence the exercise of the <\/p>\n
    writ jurisdiction under Article 226  would be warranted.\n<\/p>\n
                   On the other hand, it has been urged on behalf of the Revenue <\/p>\n
    that (i) Save and except for the first issue on which the assessment is sought <\/p>\n
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\n                                            6<\/span><\/p>\n
    to be re-opened, the other three issues were not considered by the Assessing <\/p>\n
    Officer; (ii) Explanation (1) to Section 147 provides that a mere production <\/p>\n
    before the Assessing Officer of account books  or other evidence from which <\/p>\n
    material evidence could with due  diligence have  been  discovered will  not <\/p>\n
    necessarily amount to a disclosure within the meaning of the first proviso to <\/p>\n
    Section 147;  (iii) The proviso would apply in a situation such as the present <\/p>\n
    where, according to the Revenue, the Assessing Officer has not considered <\/p>\n
    three of the issues on the basis on which the assessment was sought to be re-\n<\/p>\n
    opened.\n<\/p>\n
    6.          Section 147 of the Income Tax Act, 1961 empowers the Assessing <\/p>\n
    Officer to assess or re-assess income chargeable to tax which he has reason to <\/p>\n
    believe has escaped assessment and other income which comes to his notice <\/p>\n
    subsequently during the course of the proceedings under the Section.   The <\/p>\n
    existence of a reason to believe conditions a valid exercise of statutory power <\/p>\n
    under Section 147.  The proviso however stipulates that where an assessment <\/p>\n
    has been carried out under sub-section (3) of Section 143, action after the <\/p>\n
    expiry of four years from the end of the relevant assessment year would stand <\/p>\n
    barred unless income chargeable to tax has escaped assessment inter alia by <\/p>\n
    the failure on the part of the assessee to disclose fully and truly all material <\/p>\n
    facts necessary for the assessment for that assessment year.  Hence, where a <\/p>\n
    re-opening of assessment takes place beyond a period of four years from the <\/p>\n
    end of the relevant assessment year, the test which the statute requires to be <\/p>\n
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\n                                                     7<\/span><\/p>\n
    applied is based on the nature of the disclosure that is made by the assessee.\n<\/p>\n
    If the assessee has made a full and true disclosure of all the material facts for <\/p>\n
    his assessment, the action of re-opening the assessment would stand barred.\n<\/p>\n
    Contrariwise, where there is a failure on the part of the assessee to disclose <\/p>\n
    fully and truly all material facts necessary for the assessment, the re-opening <\/p>\n
    of the assessment would stand validated even if it takes place beyond the <\/p>\n
    expiry of a period of four years.\n<\/p>\n
    7.<\/p>\n
                   Explanation   (1)   to   Section   147   stipulates   that   the   production <\/p>\n
    before the Assessing Officer of account books or other evidence from which <\/p>\n
    material   evidence   could   with   due   diligence   have   been   discovered   by   the <\/p>\n
    Assessing   Officer   will   not   necessarily   amount   to   a   disclosure   within   the <\/p>\n
    meaning of the first proviso.  In other words, an assessee cannot rest content <\/p>\n
    merely with the production of account books or other evidence during the <\/p>\n
    course of the  assessment proceedings and challenge the re-opening of the <\/p>\n
    assessment on the ground that if the Assessing Officer were to initiate a line <\/p>\n
    of enquiry, he could with due diligence have arrived at material evidence.\n<\/p>\n
    The   primary   obligation   to   disclose   is   on   the   assessee   and   the   burden   of <\/p>\n
    making   a   full   and   true   disclosure   of   material   facts   does   not   shift   to   the <\/p>\n
    Assessing Officer.   The assessee has to disclose fully and truly all material <\/p>\n
    facts.  Producing  voluminous  records  before  the  Assessing  Officer  does not <\/p>\n
    absolve the assessee of the obligation to disclose and the assessee, therefore, <\/p>\n
    cannot be heard to say that if the Assessing Officer were to conduct a further <\/p>\n
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\n                                                  8<\/span><\/p>\n
    enquiry,   he   would   come   into   possession   of   material   evidence   with   the <\/p>\n
    exercise of due diligence.   An assessee cannot throw reams of paper at the <\/p>\n
    Assessing Officer and rest content in the belief that the Officer better beware <\/p>\n
    or ignore the hidden crevices in the pointed material at his peril.\n<\/p>\n
    8.              Parliament   has  used   the   words  necessarily   in  explanation  (1).\n<\/p>\n
    The expression ‘necessarily’ means  inevitably  or as a matter of a compelling <\/p>\n
    inference.   The Oxford English Dictionary defines the expression “necessarily”\n<\/p>\n
    as meaning (i) By force of necessity; unavoidably; (ii) As a necessary aid or <\/p>\n
    concomitant;   indispensably;   (iii)   By   a   necessary   connexion;   (iv)   In <\/p>\n
    accordance with a necessary law or operative principle; (v) As a necessary <\/p>\n
    result or consequence; and (vi) Of necessity; inevitably.   The production of <\/p>\n
    account   books   or   other   evidence   before   the   Assessing   Officer   will   not, <\/p>\n
    therefore, inevitably amount to an inference of disclosure within the meaning <\/p>\n
    of the first proviso.  As a Division Bench of the Calcutta High Court observed <\/p>\n
    in  Imperial   Chemicals   Industries   Limited   V\/s.   Income-Tax   Officer2,   the <\/p>\n
    words ‘not necessarily’ indicate that “whether it is a disclosure or not within <\/p>\n
    the   meaning   of   the   said   Section   ..   would   depend   on   the   facts   and <\/p>\n
    circumstances   of   each   case,   that   is   the   nature   of   the   document   and <\/p>\n
    circumstances in which it is produced.” (at page 639).   In  Rakesh Agarwal  <\/p>\n
    Vs. Assistant Commissioner of Income Tax3, the Delhi High Court held that <\/p>\n
    the   nature   of   the   documents   and   the   circumstances   in   which   these   are
\n    2 (1978) 111 ITR 614 (Cal.)
\n    3 (1996) 221 ITR 492 (Del.)<\/p>\n
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\n                                                   9<\/span><\/p>\n
    produced before the  Assessing Officer  will determine the  question.   If  the <\/p>\n
    material is not writ large on the document, but is embedded in voluminous <\/p>\n
    records or books of account which require careful scrutiny by the Assessing <\/p>\n
    Officer, it is quite possible that having regard to the nature of the documents, <\/p>\n
    material   evidence   cannot   be   discovered   from   such   records   despite   due <\/p>\n
    diligence and the case would attract the Explanation.\n<\/p>\n
    9.             In this background, it would now be necessary to consider each <\/p>\n
    of   the   four  reasons  which  have  weighed  with  the  Assessing   Officer  in   re-\n<\/p>\n
    opening the assessment.\n<\/p>\n
                   The  first   ground   on   which  the   assessment   is  sought  to   be   re-\n<\/p>\n
    opened   is   that   the   assessee   had   engaged   a   wholly   owned   subsidiary   for <\/p>\n
    providing market development and sales support in the US.  The subsidiary <\/p>\n
    was   being   remunerated   on   a   cost   plus   basis.     Out   of   such   remuneration, <\/p>\n
    expenses amounting to Rs.218.54 million (Rs.21.85 crores) were treated as <\/p>\n
    deferred over a period of two years.   The assessee had amortized Rs.9.36 <\/p>\n
    crores   out   of   the   amount   of   Rs.21.85   crores.     According   to   the   Assessing <\/p>\n
    Officer   the   assessee   had   claimed   a   deduction   of   Rs.21.85   crores   in   the <\/p>\n
    computation of income while adding back the amortized amount.  However, <\/p>\n
    the   expenditure   should   have   been   treated   as   capital   expenditure   and   the <\/p>\n
    assessee   is   stated   to   have   wrongly   claimed   the   deduction   towards   such <\/p>\n
    expenses.     On   this   ground,   it   has   been   stated   that   there   has   been   an <\/p>\n
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\n                                                 10<\/span><\/p>\n
    escapement of income to the extent of Rs.21.85 crores.\n<\/p>\n
    10.            Now in considering the first ground on which the assessment is <\/p>\n
    sought to be re-opened reference may be made at the outset to Schedule 12 <\/p>\n
    of the Schedules forming part of the accounts of the assessee.  The assessee <\/p>\n
    disclosed that the market development and support expenses were amortized <\/p>\n
    to   the   extent   of   Rs.9.36   crores.     In   Schedule   9   the   deferred   revenue <\/p>\n
    expenditure   for   market   development   and   support   expenses   reflected   an <\/p>\n
    addition of Rs.21.85 crores during the year.   Rs.9.36 crores was amortized <\/p>\n
    during  the year and was charged to the  profit and loss account leaving a <\/p>\n
    balance of Rs.12.84 crores to be carried forward to the next year.  The basis <\/p>\n
    on   which   this   was   done   was   explained   in   para   2.18   of   the   Significant <\/p>\n
    Accounting   Policies   and   Notes   to   the   Accounts.     The   statement   of   total <\/p>\n
    income   of   the   assessee   included   an   amount   of   Rs.9.36   crores   which   was <\/p>\n
    added back as an item not allowable or considered separately.  An amount of <\/p>\n
    Rs.21.85 crores was deducted as market development and support expenses.\n<\/p>\n
    Note 5 of the Notes attached to and forming part of the return contained a <\/p>\n
    disclosure   to the  effect  that  market  development and  support expenditure <\/p>\n
    amounting to Rs.21.85 crores has been claimed as a deduction in the year at <\/p>\n
    incurring.\n<\/p>\n
    11.            During   the   course   of   the   proceedings,   the   Assessing   Officer <\/p>\n
    addressed a communication dated 3 December 2004 to the assessee seeking <\/p>\n
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\n                                                  11<\/span><\/p>\n
    inter   alia   a   disclosure   together   with   documentary   evidence   in   relation   to <\/p>\n
    market   development   and   support   expenses   which   were   amortized.     The <\/p>\n
    Assessing Officer in Item 15 of the letter specifically brought his attention to <\/p>\n
    bear   on   the   fact   that   the   assessee   had   incurred   market   development <\/p>\n
    expenditure   at   Rs.21.85   crores   and   that   in   the   profit   and   loss   account <\/p>\n
    expenses   to   the   extent   of   Rs.9.36   crores   have   been   debited   as   expenses <\/p>\n
    amortized  while  the   balance  was  deferred     as   Revenue   expenditure.     The <\/p>\n
    Assessing Officer noted that in the computation of total income, the entire <\/p>\n
    expenditure   of   Rs.21.25   crores   has   been   claimed   as   a   deduction.     The <\/p>\n
    Petitioner was called upon to explain why there was a differential treatment <\/p>\n
    of the expenses in the profit and loss account vis-a-vis the computation of <\/p>\n
    income and to show cause as to why the balance of Rs.12.49 crores should <\/p>\n
    not be added back to the total income of the assessee.   In response to the <\/p>\n
    questionnaire the assessee furnished a detailed note to the Assessing Officer <\/p>\n
    by a letter dated 7 February 2005.   In the course of its response the assessee <\/p>\n
    clarified that during the year it had paid an amount of Rs.21.85 crores to its <\/p>\n
    subsidiary and though the same was treated as deferred revenue expenditure <\/p>\n
    in the books of account and amortized over a period of two years, the entire <\/p>\n
    amount   had   been   claimed   as   an   expenditure.     The   assessee   relied   upon <\/p>\n
    certain decisions in support of its case.  It was after the assessee had filed its <\/p>\n
    response that an order of assessment was passed by the Assessing Officer.\n<\/p>\n
    12.              The record before the Court, to which a reference has been <\/p>\n
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\n                                                   12<\/span><\/p>\n
    made earlier, is clearly reflective of the position that during the course of the <\/p>\n
    assessment proceedings the assessee had made a full and true disclosure of <\/p>\n
    all material facts in relation to the assessment.  As a matter of fact, it would <\/p>\n
    be necessary to note that the notice to re-open the assessment on the first <\/p>\n
    issue is founded entirely on the assessment records.  There is no new material <\/p>\n
    to which a reference is to be found and the entire basis for re-opening the <\/p>\n
    assessment   is   the   disclosure   which   has   been   made   by   the   assessee   in   the <\/p>\n
    course   of   the   assessment   proceedings.     In  Cartini   India   Limited   V\/s.\n<\/p>\n
    Additional Commissioner of Income Tax4, a Division Bench of this Court has <\/p>\n
    observed   that   where   on   consideration   of   material   on   record,   one   view   is <\/p>\n
    conclusively   taken   by   the   Assessing   Officer,   it   would   not   be   open   to   the <\/p>\n
    Assessing Officer to re-open the assessment based on the very same material <\/p>\n
    with a view to take another view.  The principal which has been enunciated <\/p>\n
    in Cartini must apply to the facts of a case such as the present.  The assessee <\/p>\n
    had   during   the   course   of   the   assessment   proceedings   made   a   complete <\/p>\n
    disclosure of material facts.  The Assessing Officer had called for a disclosure <\/p>\n
    on which a specific disclosure on the issue in question was made.  In such a <\/p>\n
    case, it cannot be postulated that the condition precedent to the re-opening <\/p>\n
    of an assessment beyond a period of four years has been fulfilled.\n<\/p>\n
    13.            In so far as the second ground for re-opening the assessment is <\/p>\n
    concerned, the Assessing Officer has adverted to the fact that the assessee <\/p>\n
    4 (2009) 314 ITR 275 (Bom)<\/p>\n
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\n                                                     13<\/span><\/p>\n
    arrived   at   a   loss   on   sale   of   long   term   investments   at   Rs.2.4   million   (the <\/p>\n
    correct figure as a matter of fact should read as Rs.2.04 million) whereas the <\/p>\n
    amount   added   back   to   the   income   was   Rs.1.85   million.     The   balance, <\/p>\n
    according to the Assessing Officer reflects an escapement of income.  Now, in <\/p>\n
    so far as this aspect is concerned it is evident from Schedule 12 to the profit <\/p>\n
    and   loss   account   that   the   assessee,   as   part   of   its   selling   general   and <\/p>\n
    administrative expenses disclosed a loss on sale of long term investments of <\/p>\n
    Rs.2.04 million.  In Schedule 13 under the head of other income, the assessee <\/p>\n
    disclosed a profit on the sale of current investments of Rs.0.18 million.  The <\/p>\n
    statement   of   total   income   of   the   assessee   contains   an   addition   of   a   net <\/p>\n
    amount   of   Rs.1.85   million   on   account   of   the   loss   on   investments.     This <\/p>\n
    represents the netting off of the loss of Rs.2.04 million against a profit of Rs.\n<\/p>\n
    0.18 million against the sale of current investments.   The learned Counsel <\/p>\n
    appearing on behalf of the Revenue urged during the course of submissions <\/p>\n
    that from the statement of total income it is not clear as to how the loss in <\/p>\n
    the amount of Rs.1.85 million on the sale on investments is accounted for <\/p>\n
    and whether this forms a part of the capital loss of Rs.2.80 million which is to <\/p>\n
    be carried forward.  The difficulty in accepting the line of submission urged <\/p>\n
    on behalf of the Revenue is that this is not the reason which have weighed <\/p>\n
    with the Assessing Officer when the assessment was sought to be re-opened.\n<\/p>\n
    The validity of the re-opening of the assessment has to be determined with <\/p>\n
    reference   to   the   reasons   which   have   weighed   with   the   Assessing   Officer.\n<\/p>\n
    Those   norms   cannot  be   added   to  or  supported   on  a   basis   which  was  not <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 16:00:35 :::<\/span>
\n                                                 14<\/span><\/p>\n
    present to the mind of the Assessing Officer when he issued the notice to re-\n<\/p>\n
    open.   That apart, when this Court by its judgment dated 10 March 2010 <\/p>\n
    found that the Assessing Officer had passed an order of assessment without <\/p>\n
    dealing with the objections of the assessee, in breach of the judgment of the <\/p>\n
    Supreme   Court   in  G.K.N.   Drive   Shaft,   an   opportunity   was   granted   to   the <\/p>\n
    Assessing Officer to deal with the objections of the assessee.   The Assessing <\/p>\n
    Officer in the order that he thereafter passed on 5 April 2010 has not dealt <\/p>\n
    with the  objections of the  assessee  and has  on  the contrary held that the <\/p>\n
    merits of the objections would be decided only at the stage of the assessment <\/p>\n
    proceedings.  Consequently, neither in the reasons advanced by the Assessing <\/p>\n
    Officer   for   re-opening   the   assessment   nor   in   the   order   passed   on   the <\/p>\n
    objections filed by the assessee is there any reference to the ground which <\/p>\n
    has been urged in the submissions on behalf of the Revenue at the hearing of <\/p>\n
    these proceedings.  A ground which has no basis either in the notice for re-\n<\/p>\n
    opening the assessment or in the order dealing with the objections of the <\/p>\n
    assessee cannot be heard to be urged for the first time in these proceedings, <\/p>\n
    instituted under Article 226 of the Constitution to challenge the re-opening of <\/p>\n
    the assessment.\n<\/p>\n
    14.           The third ground on which the assessment has been sought to be <\/p>\n
    re-opened is that from Annexure 2, Clauses 20 and 22(b), of Form 3CD an <\/p>\n
    amount of Rs.31.32 lakhs is found to be debited to the profit and loss account <\/p>\n
    on account of prior period expenses.  This according to the Assessing Officer <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:00:35 :::<\/span>
\n                                                15<\/span><\/p>\n
    is not allowable under the Act and should be added back.  To this extent, the <\/p>\n
    Assessing Officer has found that there was an escapement of income.  During <\/p>\n
    the course of the submissions, the attention of the Court has been drawn by <\/p>\n
    the learned Counsel appearing on behalf of the assessee to the Particulars of <\/p>\n
    income and expenditure of the prior period, credited or debited to the profit <\/p>\n
    and loss account.  Appended to the statement are the following notes :\n<\/p>\n
          “1) Based   on   the   recommendations   of   the   Institute   of
\n          Chartered   Accountants   of   India   in   its   publication   “Guidance <\/p>\n
          Note on Tax Audit u\/s.44AB of Income Tax Act, 1961” at para
\n          44.2   of   edition   Sept   99,   expenditure   of   earlier   years   means
\n          expenditure   which   arose   or   accrued   in   any   earlier   year   and <\/p>\n
          which excludes any expenditure of any earlier year for which the
\n          liability to pay has crystallized during the year.\n<\/p><\/blockquote>\n
          2)    Excess   \/   short   provision   of   earlier   year   &   income   and <\/p>\n
          expenditure   crystallized   during   the   year   though   shown   above
\n          has not been considered as prior period item.”\n<\/p><\/blockquote>\n
    15.          These notes, according to the assessee are consistent with the <\/p>\n
    Guidance Note issued by the Institute of Chartered Accountants on Tax Audit <\/p>\n
    under Section 44AB of the Act.   By its note, the assessee has recorded that <\/p>\n
    the expenditure of the earlier years means expenditure which arose or which <\/p>\n
    accrued in any earlier year and excludes any expenditure of an earlier year <\/p>\n
    for which the liability to pay has crystallized during the year.  Similarly, the <\/p>\n
    assessee has clarified that excess \/ short of provision of an earlier year and <\/p>\n
    income and expenditure crystallized during the year, though shown in the <\/p>\n
    statement, have not been considered as prior period items.  The assessee, as <\/p>\n
    the material on record would show, therefore brought to bear the attention of <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 16:00:35 :::<\/span>
\n                                                   16<\/span><\/p>\n
    the Assessing Officer to this facet while submitting the Tax Audit Report as a <\/p>\n
    part of its return of income.   This is not a case where the assessee can be <\/p>\n
    regarded as having merely produced its books of account or other evidence <\/p>\n
    during   the   course   of   the   assessment   proceedings   on   the   basis   of   which <\/p>\n
    material evidence could have been deduced by the Assessing Officer with the <\/p>\n
    exercise   of   due   diligence.     Under   Section   139   the   assessee   was   under   a <\/p>\n
    mandatory obligation to furnish with its return of income the report of audit <\/p>\n
    under Section 44AB.   The assessee fulfilled the obligation. The disclosures <\/p>\n
    which are made as part of the  report under Section  44AB cannot fall file <\/p>\n
    within the interdict of explanation (1) to Section 147.\n<\/p>\n
    16.            In so far as the fourth ground for re-opening the assessment is <\/p>\n
    concerned,   the   Assessing   Officer   has   noted   that   the   assessee   debited   an <\/p>\n
    amount of Rs.12.68 crores on account of the interest on a fixed loan to the <\/p>\n
    profit and loss account which has not been capitalized.  The assessee is noted <\/p>\n
    to   have   capitalized   an   amount   of   Rs.2.18   crores   in   the   previous   year <\/p>\n
    2000-2001   on   the   same   account.     As   regards   this   ground   it   would   be <\/p>\n
    important to note that the assessee had disclosed as part of its profit and loss <\/p>\n
    account   earnings   before   interest,   depreciation   and   tax   at   Rs.58.09   crores.\n<\/p>\n
    The profit before tax was computed at Rs.33.29 crores, after deducting from <\/p>\n
    the   aforesaid   amount   the   interest   on   a   fixed   loan   of   Rs.12.68   crores   and <\/p>\n
    amortization of premium on debentures at Rs.12.11 crores.   As part of its <\/p>\n
    disclosure   of   Significant   Accounting   Policies,   in   Schedule   14   the   assessee <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 16:00:35 :::<\/span>
\n                                                      17<\/span><\/p>\n
    disclosed in  para  1.9  under  the   heading  ‘Borrowing  Costs’ that  borrowing <\/p>\n
    costs   directly   attributable   to   acquisition,   construction   and   production   of <\/p>\n
    assets   are   capitalized   as   part   of   the   costs   of   such   asset   upto   the   date   of <\/p>\n
    completion.     In   its   objections   to   the   re-opening   of   the   assessment,   the <\/p>\n
    assessee also noted that under Section 36(1)(iii), the interest paid in respect <\/p>\n
    of capital borrowed for the purposes of business or production is allowable as <\/p>\n
    a deduction.   Interest expenses of Rs.12.68 crores debited to the profit and <\/p>\n
    loss account were disclosed to constitute   interest paid on loans taken for <\/p>\n
    carrying   out   normal   business   activities   and   was   claimed   as   an   allowable <\/p>\n
    deduction under Section 36(1)(iii).   The assessee drew the attention of the <\/p>\n
    Assessing Officer to the fact that interest expenses of Rs.2.18 crores referred <\/p>\n
    to   in   the   notice   for   re-opening   was   capitalized   in   the   previous   year <\/p>\n
    2000-2001   because   they   were   incurred   in   respect   of   a   loan   taken   for <\/p>\n
    acquisition of fixed assets.  This explanation of the assessee was evidently not <\/p>\n
    considered  and  has  not  been  dealt  with  while   disposing   of   the   objections <\/p>\n
    raised by the assessee to the re-opening of the assessment.\n<\/p>\n
    17.             For these reasons, we are of the view that the Revenue has failed <\/p>\n
    to   establish   before   the   Court   that   there   was   a   failure   on   the   part   of   the <\/p>\n
    assessee to disclose fully and truly all the material facts necessary for the <\/p>\n
    assessment for assessment year 2002-2003.  Unless this were to be the case, <\/p>\n
    the exercise of the power to re-open the assessment beyond a period of four <\/p>\n
    years   of   the   end   of   the   relevant   assessment   year   would   fail   to   fulfill   the <\/p>\n
                                                                     ::: Downloaded on – 09\/06\/2013 16:00:35 :::<\/span>
\n                                              18<\/span><\/p>\n
    statutory condition precedent to a valid exercise of the power to re-open an <\/p>\n
    assessment beyond a period of four years.\n<\/p>\n
    18.         Consequently,   the   petition   would   have   to   be   allowed   and   is <\/p>\n
    accordingly allowed.  Rule is made absolute in terms of prayer clause (a) by <\/p>\n
    setting aside the notice dated 18 March 2009.  There shall be no order as to <\/p>\n
    costs.\n<\/p>\n
                (J.P. Devadhar, J.)                        (Dr.D.Y. Chandrachud, J.)\n                           \n        \n     \n\n\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 16:00:35 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Act vs The Assistant Commissioner Of on 14 June, 2010 Bench: Dr. D.Y. Chandrachud, J.P. Devadhar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.892 OF 2010 3i Infotech Limited, a company incorporated under the Companies Act, 1956 and having its registered office at Tower […]<\/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":[11,8],"tags":[],"class_list":["post-224503","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAct vs The Assistant Commissioner Of on 14 June, 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\/act-vs-the-assistant-commissioner-of-on-14-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Act vs The Assistant Commissioner Of on 14 June, 2010 - 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