TMI Blog2000 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... uch section under the Act is a procedural enactment for the purpose of doing the needful by the authority concerned. However, unless and until either of the two conditions are fulfilled, the authority concerned cannot open the assessment already -made for the relevant assessment year in view of a proviso under section 147 of the Act where it is categorically mentioned 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. Factually, this case has a chequered history which has been dealt with by numerous income-tax authorities of the Income-tax Act and the same has been proceeded up to the level of the Commissioner as well as the Tribunal which are not at all relevant at the present moment. The relevancy is in respect of the question of reassessment under section 148 of the Income-tax Act when the assessment was completed in the year 1993-94. Initially, it was alleged by the petitioner that the notice was served without any reason whatsoever but during the course of proceeding, the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year. Under the signature of the Vice-President of the company, the statement as has been filed before this court from which it appears that all descriptions regarding contribution to provident fund, contribution to superannuation fund, bonus relating to the financial year 1992-93, professional tax, family pension fund, and customs duty are given therein. So far the customs duty is concerned, a note has been given in such statement which is as follows : "Note : Rs. 39,39,096 has been paid in advance during the year on account of bonding of imported raw materials as per public notice No. 239 dated December 23, 1991, of the Collector of Customs and shown under the head 'Loans and advances' in the account." The petitioner contended that the aforesaid amount of Rs. 39,39,096 is not charged in the profit and loss account. According to the writ petitioner, the Assessing Officer made enquiries regarding the closing stock valuation relating to excise duty and customs duty which also included the customs duty paid in advance amounting to Rs. 39,39,096 and after considering the same, he disallowed Rs. 99,10,108 and also made an addition of Rs. 11,00,000 on account of closing stock valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the cross-objection which the writ petition company has filed. It appears from the annexures to the writ petition that the second ground of appeal as made by the Deputy Commissioner of Income-tax, Special Range-4, Calcutta, before the Appellate Tribunal is as follows : "On the facts and circumstances of the case, learned Commissioner of Income-tax (Appeals) had erred on facts and law in allowing deduction under section 43B in respect of excise and customs duty on the basis of difference between the opening and the closing stock and not as per the provision of section 43B." From the assessment order as annexed in the writ petition it appears that the portion of the customs duty paid during the financial year 1992-93 on account of bonding of imported raw materials and shown a "loans and advances" in the accounts claimed allowable under section 43B of the Income-tax Act is for the self-same sum of Rs. 39,39,096. From the auditor's certificate for the relevant year at page 196 of the writ petition, it appears that such sum of Rs. 39,39,096 was recorded as paid towards customs duty during the year ended March 31, 1993, in accordance with public notice No. 239 dated Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by itself will not turn every case of excessive depreciation allowance into a case of omission or failure to disclose fully and truly all material facts. If the reopening is to be done after the prescribed period of four years, failure to disclose fully and truly all material facts by the assessee has to be established. Merely because an under assessment has taken place on account of excessive depreciation allowance on a wrong understanding of law will not make it a case of omission to disclose fully and truly of all material facts. He has also cited another judgment in Modi Spinning and Weaving Mills Co. Ltd. v. ITO [1970] 75 ITR 367 (SC), to establish that either there should be (a) omission or failure on the part of an assessee to make a return of income, or (b) omission or failure on the part of an assessee to disclose fully or truly all material facts necessary for the assessment of that order. Learned counsel appearing on behalf of the respondent contended that an effective alternative remedy is available by way of appeal under the Income-tax Act. In any event, the Assessing Officer had made a disallowance of Rs. 99,10,108 in respect of excise duty relatable to the clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid purpose, the observation of the Supreme Court has to be followed. From the decision of the Supreme Court reported in Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191, the majority view is that there are certain prima facie facts which are relevant for the purpose of consideration. Such primary facts are that it was the assessee's duty to disclose all of them including particular entries in the account books, particular portions of documents, and documents and other evidence which could have been discovered by the assessing authority, from the documents and other evidence disclosed. The duty, however, did not extend beyond the full disclosure of all primary facts. Once all the primary facts were before the assessing authority, it was for him to decide what inferences of facts could be reasonably drawn and what legal inferences had ultimately to be drawn. It was not for anybody else--far less the assessee--to tell the assessing authority what inference whether of facts or law, should be drawn. Hence, it cannot be construed now from the facts or law that the petitioner did not disclose such facts or closing stock of imported raw materials bonded as on March 31, 1993. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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