TMI Blog2002 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee as envisaged by the proviso to section 147 or in any manner by suppression or omission, he took advantage and escaped the assessment. - In the result, we allow the petition and quash the impugned notices - - - - - Dated:- 25-10-2002 - Judge(s) : A. A. DESAI., IRSHAD HUSSAIN. JUDGMENT The judgment of the court was delivered by A.A. DESAI C.J.-This petition by an assessee is directed against notices (marked as annexures "I", "P", "U", "Z" and "'AE") purported to have been issued under section 147 read with section 148 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act"). They have been impugned principally on the ground that they suffer from serious legal infirmity since they were issued after the expiry of fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would, therefore, be permissible, only when there is failure on the part of the assessee. And there has been no such failure which could be attributable to the assessee. Even the impugned notices did not indicate any failure or omission on the part of the assessee. To appreciate the ground of challenge, it would be beneficial to reproduce section 147 and proviso: "If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee need not be unnecessarily harassed by the Assessing Officer. However, grant of such sanction/permission does not dispense with the conditions as mandated by the proviso to section 147, which according to us are imperative. Mr. Posti, then urged that for a non-resident: company like the petitioner the income is assessable to ten per cent. of gross receipt for the work done outside India, as envisaged by section 44BB. With the assistance of learned counsel, we have perused the provision. These provisions were on the statute book since 1983. It is thus clear that it was open and permissible for the assessing authority to assess ten per cent. of the gross receipt instead of one per cent. as offered by the assessee. It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was completed on January 12, 1993, on total income of Rs. 2,81,31,790. The income of NRC assessee was computed under the provisions of section 44BB of the Income-tax Act, 1961. The assessee NRC has offered mob/demob as outside India receipts and was assessed at the deemed profit rate of one per cent. treating the same as outside India work. In view of the decision of the Income-tax Appellate Tribunal in the case of ONGC as agent of M/s. Nippon Kokan in I.T.A. No. 3413/D of 1988 and Sedco Forex Intl. Drilling Inc. In I.T.A. No. 4562/D of 1991, the reimbursement on account of mob/demob is to be treated as inside India receipt as deemed profit rate of ten per cent.... Keeping in view the above facts, the income chargeable to tax has been und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied with. According to learned counsel, the information as envisaged under the Explanation would also be decision of superior authorities and includes true and correct state of law and also information as to judicial decision. He sought to support this proposition by citing various authorities. We need not discuss the case law, even accepting the position of law as an information for reopening of assessment. It could be for invoking the provisions under section 147 of the Act. The proviso to section 147 of the Act as discussed casts exemplary burden for satisfaction that the assessment escaped only due to failure on the part of the assessee for the contingency either of the description. In our view, information relating to the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries Ltd. v. ITO [1990] 184 ITR 242 (Cal) urged that the writ court will not sit in appeal over each and every order of the statutory authority unless the order is perverse in nature causing manifest injustice. We do not propose to do so, but the authority for them flows only from the statutory scheme and if the statute does not permit, the exercise will be manifestly illegal leading to substantial failure of justice. He then tried to urge that the writ court cannot assess the sufficiency of the ground or reason to believe as envisaged under section 147. The submission of learned counsel is devoid of merit for this reason that the reason or ground for reopening of assessment in terms of the proviso to section 147 are totally non-existe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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