TMI Blog1952 (4) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... or the years 1941, 1942 and 1943 and in respect of all these three years of assessment he succeeded in getting an order of the Central Board of Revenue under Section 26(3) of the Act. That section provides that If on an application made to it through the Excess Profits Tax Officer the Central Board of Revenue is satisfied that the computation in accordance with the provisions of Schedule I of the profits of a business during any chargeable accounting period would be inequitable , owing to any of the circumstances therein mentioned (and the relevant circumstance in this case is that the provision of buildings, plant or machinery which will not be required for the purposes of the business after the termination of the present hostilities ) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereupon he purported to act under Section 15 of the Act and revised the assessments for the three years 1941, 1942 and 1943. What is challenged before us is that the Excess Profits Tax Officer should not act under Section 15 as that section was not applicable looking to the facts of the present case. Section 15 provides that if, in consequence of definite information which has come into his possession, the Excess Profits Tax Officer discovers that profits of any chargeable accounting period chargeable to excess profits tax have escaped assessment, or have been under assessed, or have been the subject of excessive relief, he may at any time within five years of the end of the chargeable accounting period in question serve on the person liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the termination of the war. If the assessee used the buildings, plant or machinery for its business after the war it would not be entitled to any relief. The validity of the relief given to tit depended upon the buildings, plant or machinery not being used for the purposes of its business after the war. How is it possible to judge whether the assessee was entitled to relief or not till after the war came to an end and till it was ascertained whether in fact the assessee did or did not use the buildings, plant or machinery for its business. This was a fact which was not in existence and could not be in existence at the date of the assessment. But perhaps that would not be enough if irrespective of this fact the assessment was valid ; but in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not void from its inception but it was voidable and it had to be avoided and it was only when the marriage was avoided that it had become void ab initio and that it was not void for all purposes. The Court further held that there was a de facto marriage between the taxpayer and his wife and the taxpayer was entitled to relief in respect of the de facto marriage also. Therefore, the finding of the Court was that the assessment was valid when it was made and that the mere fact that the de facto marriage was subsequently held to be void did not deprive the taxpayer of his relief. Therefore, in that case the validity of the assessment and the right of the taxpayer to obtain relief could be determined at the date when the assessment was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay that the change of opinion constitutes discovery of a new fact. At page 209 Rowlatt, J., observes that What the statute requires, therefore, is an estimate to what extent the debt is bad, and this is for the purpose of a profit and loss account. Such an estimate is not a prophecy to be judged as to its truth by after events, but a valuation of an asset de prasenti upon an uncertain future to be judged as to its soundness as an estimate upon the then facts and probabilities . This case would have applied in the present case if the relief granted to the taxpayer depended upon the opinion or estimate of the Excess Profits Tax Officer. But it is clear that the relief granted to the assessee did not proceed upon any estimate or opinion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see to excess profits tax for the years 1941, 1942 and 1943, and the taxing authority has carried out that order which was a valid order under the Act. But in deciding the case in the way in which we are going to decide it we are not going behind the order of the Central Board of Revenue. That order itself postulates relief being granted on the basis of a fact which can only be determined at a subsequent date. When that fact is determined it is found that the assessee is not entitled to the relief granted to it by the Central Board of Revenue. Therefore it is found that the assessee has obtained excessive relief and under Section 15 it has been deprived of that excessive relief upon discovery of the fact that it has used the buildings, plan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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