TMI Blog2012 (2) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of income, but whether, there has been a failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. Since there was a disclosure by the Petitioner of the material facts necessary for the assessment. Hence, primary jurisdictional requirement under the proviso to Section 147 has not been fulfilled – Decided in favor of assessee. - WRIT PETITION NO.158 OF 2012 - - - Dated:- 10-2-2012 - DR. D.Y.CHANDRACHUD M.S.SANKLECHA, JJ. Mr.F.V.Irani with Mr.Jitendra Jain, Mr.Atul K. Jasani, Mr.P.C.Tripathi, for the Petitioner. Mr.Suresh Kumar, for the Respondents. ORAL JUDGMENT (Per Dr.D.Y.Chandrachud, J.): 1 Rule; with the consent of Counsel for the parties returnable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing disclosure: 12. The RBI has in the permission given for remittance of CDC (Container Detention Charges) amount to principal, has allocated $ 1.5 per day, per TEU as administrative charges for Agent s local use out of the nonremittable funds. The said allocation is not as per the Agency Agreement entered into by the company with the Principals and hence no entry has been passed in the books of Accounts for such allocation amounting to Rs. 3,30,53,628/( Rs.2,73,79,398). 5 The Statutory Auditors of the Petitioner included the following note in their report dated 2 July 2004 which was annexed to the report: Subject to note No.11 regarding change in the method of charging commission since 1999 which is subject to confirmation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , NYK Ltd.. It handles with freight booking and collection for the Principal. Apart from that, it also takes care of the management of the containers, collecting container rent, paying the ports and other agents for container on behalf of the Principal. The assessee company doesn t charge anything for these services and towards the expenses it incurs for rendering these services. The RBI to stop such practice has issued a directive/ circular No.EC By Pass II.361/Misc.93.94 dt.15.09.03 issued by Exchange Control Department of RBI, notifying the remission of container rent so collected whereby it is mandatory for the agent (like assessee company) to retain 1.50$ per TOU paid out of 12.50$ CDC collected towards its own administrative expenses. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The reopening of assessment is based entirely on the order of assessment passed for Assessment Year 200708. Unless there is a failure to disclose on the part of the Petitioner, the assessment cannot be reopened. 10 On the other hand, the learned counsel appearing for the Revenue submitted that (i) the reopening is based on the fact that in the assessment proceedings for Assessment Year 200708 the amount retained has been brought to tax. The assessment could have been reopened on the basis of a finding contained in an order of assessment for a subsequent year; (ii) Though the Petitioner has availed of the Dispute Resolution Procedure for Assessment Year 200708 the addition to income has been confirmed. 11 Now the admitted fact before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Beyond a period of four years the test is not merely whether there has been an escapement of income, but whether, there has been a failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. The fact that for Assessement Year 200708 a similar amount has been added back may be reflective of the fact that there was escapement, but that is not adequate for reopening an assessement beyond a period of four years. Here there was a disclosure by the Petitioner of the material facts necessary for the assessment. Hence, we accept the contention of the Petitioner that the primary jurisdictional requirement under the proviso to Section 147 has not been fulfilled. 12 Before concluding we may also a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
