TMI Blog2007 (6) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... A. No.567(Mds)/2003 dated 12.12.2005 raising the following substantial question of law: "Whether in the facts and circumstances of the case, the Tribunal was right in holding that the re-assessment beyond a period of 4 years from the end of the relevant assessment year is time barred ?" 2. The facts leading to the above substantial question of law are as under: The assessee is a domestic company in which the public are substantially interested. The assessee is engaged in the manufacture and export of garments. The relevant assessment year is 1990-91 and the corresponding accounting year ended on 31.03.1990. The original assessment was completed on 27.03.1992 on "Nil" income. In computation of total income, deduction from the gross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. Further, it is submitted that there was excessive deduction under Section 80HHC of the Act which enabled the Revenue to reopen the assessment under the provision of law. 4. Heard the counsel. The original assessment was completed under Section 143(3) of the Act. The Assessing Officer applied his mind and completed the said original assessment. There is no finding by the Assessing Officer that there is any failure on the part of the assessee resulting in the escapement of income. The Assessing Officer must give categorical finding for the purpose of initiating reassessment under the proviso to Section 147 of the Act. In this case the reassessment proceedings were initiated after 31st March 1995 and hence the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment brought with effect from April 1, 1989, the above distinction had been obliterated and the Assessing Officer could reassess the income as long as he had reason to believe that income chargeable had escaped assessment. The new law has inserted a proviso to section 147 in the following words : "Provided that where an assessment under sub-section(3) of section 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 section 139 or in response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate reassessment proceedings upon a mere change of opinion. It is incumbent on the Assessing Officer to prove that there was a failure to disclose material facts necessary for the assessment for the issuance of notice beyond the period of four years. 11. It is true that the Apex Court does not make the law from the date it is pronounced but from ab initio. This theory is based on the principle of ACTUS CURIE NEMINEM GRAVIBIT (An act of the court shall prejudice no man). The party ought not to be prejudiced by the delay, but should be allowed to enter up his judgment retrospectively to meet the ends of justice. When highest court of the land declares a principle of law, it should be assumed as if this was the law for all time. But l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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