TMI Blog2010 (11) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... and the documents where from the Assessing Officer could have gathered the details of sale of scrap, would not amount to true and full disclosure within the meaning of Section 147 of the Act, necessarily, it is to be held that the action taken by the Assessing Officer in the present case shall be within limitation. - CWP No. 13806 of 2010 - - - Dated:- 30-11-2010 - MR. JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE AJAY KUMAR MITTAL, JJ. Mr. Akshay Bhan, Advocate for the petitioner. Mr. Rajesh Katoch, Advocate for the respondent. AJAY KUMAR MITTAL, J. 1. In this petition filed under Articles 226/227 of the Constitution of India, the petitioner seeks quashing of the impugned notice dated 18.3.2010 (Annexure P-4) and order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 on profits derived from export of goods. Perusal of the assessment records reveals that the figure of total sales as shown by the assessee includes scrap sales of Rs.1,42,59,989/- besides sale of scrap amounting to Rs.4,73,895/- credited to machinery account. The total scrap sales, therefore, amounts to Rs.1,47,33,864/-. For the purposes of computing deduction u/s 80HHC the total scrap sales should be reduced from the profits of business. But the assessee has not done this resulting in an allowance of inadmissible deduction of Rs.19,69,371/- u/s 80HHC of the Income Tax Act, 1961. Keeping in view the above facts, I have reason to believe that income amounting to Rs.19,69,371/- has escaped assessment for Assessment Year 2003-04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineering Co. Ltd. v. Joint Commissioner of Income-Tax [2009] 312 ITR 70 (Guj). 6. Controverting the aforesaid submissions, learned counsel for the revenue by relying upon the decision of Allahabad High Court in EMA India Ltd. v. Assistant Commissioner of Income Tax [2009] 226 CTR (All) 659 submitted that in view of Explanation I to Section 147 there was non-disclosure as mere production of books of accounts and other evidence from which material evidence could with due diligence have been discovered by the assessing authority will not necessarily amount to disclosure within the meaning of proviso to Section 147. According to the learned counsel, in such a situation, the reassessment proceedings were initiated within limitation and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereinafter in this section and in ss. 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-s. (3) of s. 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under s. 139 or in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchequer as well as the tax payers cannot be imputed knowledge and consciousness to the entire bulky record produced by the assessee during assessment proceedings unless there has been conscious deliberations with regard to such an issue in the assessment order. 12. Applying the aforesaid tests to the facts of the present case, it cannot be held that there was true and full disclosure made by the assessee. A perusal of the assessment order, no where suggests that the Assessing Officer had dealt with the issue of sale of scrap while determining the quantum of deduction admissible to the assessee under Section 80HHC of the Act. 13. Similar issue arose before the Allahabad High Court in EMA India Ltd's case (supra). It was held as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records/books of account requiring a careful scrutiny and delving deep into it to notice the necessary material, it is quite possible that having regard to the nature of the documents, material evidence cannot be discovered from such records despite due diligence and the case would attract application of the said Expln. 1 to hold that mere production of the books of account or the documents, etc. without pointing out the relevant entries therein, does not amount to disclosure within the meaning of s. 147(a) of the Act [See, Rakesh Aggarwal vs. Asstt. CIT (1997) 137 CTR (Del) 65: (1996) 221 ITR 492 (Del) 499]. 3.5 The assessee does not discharge his duty by merely producing the books of account or other evidence. He has to further bring t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
