TMI Blog2003 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sustainable - WP No. 2259/2003 - - - Dated:- 10-12-2003 - Judge(s) : R. M. S. KHANDEPARKAR., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by J.P. Devadhar J.-Heard learned counsel on both sides. Rule. Rule made returnable forthwith. By consent of the parties, the petition is taken up for final hearing. In this petition, the petitioner has challenged two notices issued under section 148 of the Income-tax Act, 1961, relating to the assessment years 1996-97 and 1997-98. The petitioner is engaged in the business of manufacture of various abrasives. In the returns of income filed for the respective assessment years, the petitioner had claimed relief under sections 80-I and 80-IA of the Income-tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he market value of the bonds. We enclose copies of export invoices giving the export prices of these bonds. (b) Other bonds are not sold to any outsider in India as a matter of strategy, and because of stringent secrecy requirements. The company, therefore, has considered the Norton Company price as the market value of these bonds. We have obtained price list of Norton Company, a copy of which is enclosed. If the bonds were to be imported into India by any person, including your assessee, this is the price which the said product would cost. Accordingly, the assessee submitted before the Assessing Officer that it has rightly considered the import/export price as the market value of the bonds manufactured in the bond plant. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on behalf of the respondents, raised a preliminary objection regarding the maintainability of the petition in the light of the judgment of the apex court in the case of GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19. According to the learned advocate, on receipt of the notices issued under section 148 of the said Act and on furnishing the reasons for reopening the assessment, it was obligatory on the part of the assessee to file objections to the issuance of notice before the Assessing Officer and make submissions regarding the issuance of show cause notice, and only after the Assessing Officer passes a speaking order regarding the objection raised by the assessee, could a writ petition be filed if at all the assessee is aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure on the part of the assessee to disclose material facts in the return filed by the assessee. It is not in dispute that in the present case, reopening of the assessment is beyond the period of four years from the end of the relevant assessment year. This court in the cases of IPCA Laboratories [2001] 251 ITR 416 and Bhor Industries Ltd. [2004] 267 ITR 161, has held that if one reads Explanation 2 to section 147 including the proviso thereto, then it is clear that the cases where the Department reopens assessment within a period of four years, it can do so on the ground of income having escaped assessment even if there is no failure on the part of the assessee to disclose fully and truly all material facts. However, in the cases of reo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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