TMI Blog1998 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings have been initiated within the period prescribed under the Act. It is urged by Mr. J. P. Shah, learned counsel for the petitioner-assessees, in all these cases, that there has been no failure on the part of the assessee to make a return under section 139 or failure to make a return in response to the notice issued under sub-section (1) to section 142 or under section 148 nor there is any failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for the assessment years in question. That being so, assessment for these assessment years having been duly completed, proceedings for reassessment, if any, could not have been initiated, after the expiry of four years from the end of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acie wrong and by reason of the said unsustainable claim of deduction put forward by the assessee and its non-disallowance by the Assessing Officer has resulted in escapement of income from tax to the extent of the abovesaid amount of Rs. 68,44,752 in above said assessment year. In fact recently the Supreme Court of India has held in the case of CIT v. British Paints India Ltd. [1991] 188 ITR 44, that profit of a trade is a question of fact and it must be ascertained, as all facts must be ascertained, with reference to the evidence, and not on doctrines or theories. In view of the above facts and circumstances of the case, I am satisfied that an amount of Rs. 68,44,752 has escaped assessment on account of unsustainable claim of deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was that, the customs duty deduction can be claimed only on the basis of actual payment and not on the basis of its accrual, consideration of liability to pay customs duty which has gone in considering the value of closing stock which needs to be allowed on the basis of liability already discharged. This question drew the attention of the Assessing Officer. A query was made, the assessee made a reply and on considering that reply, the claim of the assessee was accepted. Neither there is any whisper in the reasons about failure on the part of the assessee to disclose truly and fully all material facts, nor from the facts admitted, it can be said that there has been any failure on the part of the assessee to disclose truly and correctl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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