2001 (12) TMI 18

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..... y, the assessment year 1991-92, the respondent was called upon by issuance of notice and subsequently affidavit-in-reply dated December 10, 1997, has been filed along with the reasons recorded on August 18, 1997. Rule was issued on December 15, 1997. 3. When the matter came up for hearing earlier, it was submitted on behalf of the petitioner that the reasons recorded to the following effect are factually incorrect. "The assessee-firm is engaged in the business of construction. The said firm came into existence vide partnership deed dated October 1, 1990. Therefore, the relevant previous year for the firm for filing its first return of income would be October 1, 1990 to March 31, 1991. On a perusal of the records it is noted that no retur .....

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..... ecorded, it can be seen that in the penultimate paragraph, the respondent has further recorded as under : "Further, the assessee was required to file the return of the income for the assessment year 1991-92 which the assessee has failed. Moreover, it was the duty of the assessee to declare this transaction and to file the return of income for the assessment year 1991-92. The assessee has failed on both these counts. Therefore, the escapement of assessment of income is solely attributable to the assessee." 8. Therefore, it is apparent that the factor of non-filing of the return for the assessment year 1991-92 has overbearingly weighed with the respondent for arriving at the satisfaction about the failure on the part of the assessee and es .....

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..... ent for the assessment year 1992-93 was carried in appeal by the assessee and on the assessee succeeding before the Commissioner (Appeals), the Revenue has filed second appeal before the Tribunal which is stated to be pending. It is pertinent to note that the first appellate authority decided the appeal for the assessment year 1992-93 on January 26, 1996 (sic), and the reasons have been recorded thereafter on August 18, 1997. 12. Therefore, taking into consideration the totality of the circumstances and the facts which have come on record, it is apparent that the respondent him self is not sure as to the year of taxability and whether the said item requires to be taxed in the assessment year 1991-92 or the assessment year 1992-93. In such .....

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