(a) Income‑tax‑‑‑

‑‑‑‑Reassessment‑‑‑Extended period of limitation‑‑‑Condition precedent for availing of‑‑‑Notice must record belief that income escaped assessment on account of assessee's failure to disclose material facts‑‑‑Notice issued on ground Modvat adjustment not shown as income‑‑‑Not failure to disclose facts‑‑Notice invalid‑‑‑Indian Income Tax Act, 1961, S.147.

(b) Writ‑‑‑

‑‑‑‑ Error of jurisdiction‑‑‑Can be corrected by Court‑‑‑Constitution of India, Art. 226.

Mere escape of income is insufficient to justify the initiation of action under section 147 of the Income Tax Act, 1961, after the expiry of four years from the end of the assessment year. Such escapement must be by reason of the failure on the part of the assessee either to file a return referred to in the proviso or to truly and fully disclose the material facts necessary for the assessment. Unless the condition in the proviso to section 147 of the Income Tax Act, 1061, is satisfied, the Assessing Officer does not acquire jurisdiction to initiate any proceeding under section 147 of the Act after the expiry of four years from the end of the assessment year. Thus, in cases where the initiation of the proceedings is beyond the period of four years from the end of the assessment year, the Assessing Officer must necessarily record not only his reasonable belief that income has escaped assessment but also the default or failure committed by the assessee. Failure to do so would vitiate the notice and the entire proceedings. If the Assessing Officer chooses to entertain the belief that the assessment has been made in the background of the assessee's failure to disclose truly and fully all material facts, it is necessary for him to record that fact. A notice issued without recording such a fact cannot be regarded as valid notice:

If the details placed by the assessee before the Assessing Officer were in conformity with the requirements of all applicable laws and known accounting principles, and material details had been exhibited before the Assessing Officer, it is for the Assessing Officer to reach such conclusions as he considered warranted from such data and any failure on his part to do so cannot be regarded as the assessee's failure to furnish the material facts truly and fully. Any lack of comprehension on the part of the Assessing Officer in understanding the details placed before him cannot confer a justification for reopening the assessment, long after the period of four years had expired.

By notice, dated December 1$, 1996, the Assessing Officer reopened the assessment of the petitioner for the assessment year 1989‑90, for the following reasons: (a) that excessive deduction had been allowed under section 80HHC; (b) that excessive allowance had been granted under section 32AB; and (c) that adjustment from the Modvat account had wrongly been‑ allowed as deduction as payment of excise duty. On a writ petition:

Held, that‑ the reasons recorded by the Assessing Officer did not establish, even prima facie, a failure on the part of the assessee to fully and truly disclose the material facts for the assessment, because‑‑‑‑

(a) the assessee had placed before the Assessing Officer all, statements, a perusal of which clearly showed that all the materials required for calculating the extent of benefits under sections 80HHC and 32AB and the actual calculation had been placed ‑before the officer. The mistake, if any, was ‑solely due to the mistake made by the officer and was not .a mistake attributable to any failure on the part of the assessee;

(b) a perusal of the statements filed by the assessment proceedings showed that the assessee had placed before the Assessing Officer every relevant details regarding the excise duty paid, the manner in which the payment was effected, the amounts paid through the deposit account, the amount adjusted from the Modvat account, the opening balance in the Modvat accrual account, the extent of the credit taken from that account, the extent of the amount utilised from that account, as also the closing balance as on March 31, 1989. All the information required in relation to the account had been placed before the Assessing Officer. The assessee could not have done anything more. The utilisation of the Modvat credit results in the payment of the excise duty on the final products to the extent of the credit utilised. The description given by the assessee to the payment so made as excise duty paid was the correct and normal term to describe the payment and no fault could be found with the assessee for using that term and not bifurcating that amount into the amount paid through the deposit account and the amount paid by adjustment of the Modvat credit. There was no failure on the part of the assessee to disclose truly and fully any fact in relation to the Modvat account or the amount of excise duty paid. The notice washable to be quashed.

It is well‑settled that when a jurisdictional error is brought to the notice of the Court, such errors are capable of being corrected by the Court in exercise of power under Article 226 of the Constitution of India.

Kaira District Cooperative Milk Producers Union Ltd. v. Assistant CIT (No. 1) (1995) 216 ITR 371 (Guj.) ref.

R. Srinivasan for Petitioner.

C.V. Rajan for Respondent.

JUDGMENT

The petitioner is aggrieved by the issuance of notice by the respondent under section 148 of the Income Tax Act, 1961. That notice was issued on December 18, 1996, and it is' in respect of the assessment year 1989‑90. The notice was issued more than six years after the end of the relevant assessment year.

The petitioner contends that the pre‑condition for the issue of such notice not having been satisfied, the proceedings sought to be initiated by the issuance of that notice are wholly without jurisdiction. The petitioner has, therefore, sought a writ of prohibition to prohibit the respondent from taking any proceedings pursuant to that notice.

The petitioner is a company carrying on business in the manufacture and sale of industrial V‑belts, automotive fan belts and oil seals, conveyor belting and installation of material handling systems. The petitioner filed its return of income for the assessment year 1989‑90 relevant to the accounting year ended March 31, 1989 on September 11, 1989. Revised returns were filed on April 27, 1990, and May 10, 1990, and in the last of the returns an income of Rs.20,64,850 was admitted.

The petitioner's case was selected for a details scrutiny of accounts for that assessment year and notice was issued to the petitioner under section 143(2) of the Act. All the information in detail, required by the Assessing Officer was furnished by the assessee and thereafter regular assessment was completed under section 143(3) of the Act on March.25, 1992, determining a total income of Rs.1,61,85,637 as against the sum of Rs.20,64,850 admitted by the petitioner in its revised return.

More than six years after the end of that assessment year 1989‑90, the petitioner was served with the notice under section 148 of the Act requiring the petitioner to deliver a return of income in the prescribed form within 30 days on the ground that the Assessing Officer has reason to believe that the income of the petitioner chargeable to tax has escaped assessment within the meaning of section 147 of the Act. The petitioner has filed a return in response to that notice on January 20, 1997, admitting income of Rs.81,09,230. When the case was posted to November, 17, 1997, the petitioner, according to the averment in the affidavit of the General Manager, came to know the reasons on the basis for which the notice under section 148 of the Act was issued. The petitioner has averred that the notice came to be issued after the audit had taken an objection to the assessment made on the ground that there had been underassessment and that in the opinion of the audit the acceptance by the Assessing Officer of the accounting procedure adopted by the petitioner in its accounts regarding its Central Excise duty and Modvat scheme had resulted in short levy of tax. The audit, according to the petitioner had also taken an. objection regarding the manner in which the interest had been levied under section 234A of the Act and further that excess deduction had been allowed under section 32AB of the Act.

The petitioner has averred that it had fully and completely disclosed, at the time of assessment, all the material facts necessary for the assessment and had also filed the returns required and, therefore, the preconditions required for the issue of notice under the proviso to section 147 of the Act were not fulfilled in this case.

In the counter‑affidavit filed by the Deputy Commissioner, the reasons recorded by the respondent for reopening the assessment have been set out in paragraph six, which reads thus:

"In this case, the assessment for the year (assessment year 1989‑90) was completed on a total income of Rs.1,61,85,637 as against the returned income of Rs.26,64,850 (as third revised return‑ I15J profit) and subsequently revised on August 14, 1992, to consider some of the assessee's claim. The revised total income as per that order was Rs.68,58,100. Deduction under section 80HHC of Rs.5,62,574 was allowed in the revision order. Again the assessment was revised on September 16,, 1992, to give effect to the order of the Commissioner of Income‑tax (Appeals). While computing the deduction allowable under section 80HHC (vide revision order, dated August 14, 1992), the profits from business for the purposes of deduction under section 80HHC was arrived a; without deducting the depreciation and investment allowance of earlier years as per sections 32(2) and 32A(3)(ii) respectively As a result, relief under section 80HHC has excessively been allowed resulting in underassessment. Since the income chargeable to tax has thus escaped assessment within the meaning of section 147 of the Act, action under section 147 is called for.

(ii) In the assessment under section 143(3) deduction under section 32AB was allowed to the extent of Rs.26,33,971 stating that it was restricted to the amount utilised for the purchase of machinery. However, in Annexure to the documents enclosed to the return of income, the amount eligible for deduction was arrived at Rs.25,52,973 in Form No.3AA as a sum of Rs.80,998 relates to purchases made prior to the, accounting period, i.e., prior to September 1, 1987. Thus, due to the allowance of excessive deduction under section 32AB income chargeable to tax has escaped assessment to the extent mentioned above within the meaning of section 147.

(iii) The assessee has debited a sum of Rs.1,331.72 lakhs (Rs.592.18 + 739.54lakhs) towards excise duty paid for the year ended March 31, 1989, including Modvat adjustment of Rs.157.83 lakhs but the corresponding credit was not taken into account in the profit and loss account with the result that the profit for the year was understated to that extent. This was not considered for the assessment for the year and thus income chargeable to the extent of, Rs.157.83 lakhs. has escaped assessment within the meaning of section 147.

For the reasons stated above, action under section 147 is called for in this case for the assessment year 1989‑90."

Learned counsel for the petitioner‑assessee submitted that even according to the respondent it has nowhere been recorded that the petitioner had failed to set out all the material facts necessary for its assessment and, therefore, the power under the proviso to section 147(1) was being invoked. On this ground alone, it was submitted, the impugned notice deserves to be quashed. There is considerable substance in the submission so made. The officer appears to have proceeded or the basis that the power can 'be exercised by him without regard to the proviso and, therefore, it was unnecessary to record that there was any failure on the part of the assessee to fully and actually disclose the facts necessary for its assessment. Counsel, in this context, relied on the decision of a Bench of the Gujarat High Court in the case of Karia, District Cooperative Milk Producers Union Ltd. v. Assistant CIT (No.1) (1995) 216 ITR 371, wherein it was held that where the Assessing Officer had failed to record anywhere his satisfaction or belief that the income chargeable to tax had escaped assessment on account of the assessee's failure to disclose truly and fully all material facts necessary for the assessment, a notice issued under section 148 beyond a period of four years was wholly without jurisdiction and could not be sustained.

Learned senior counsel for the Revenue contended that once reasons are recorded in conformity with the first paragraph of section 147, it is wholly unnecessary to record any further reasons for the purpose of satisfying the proviso and that it is for the assessee to demonstrate before the officer that the circumstances referred to in the proviso did not exist and, therefore, the notice ought not to have been issued.

Section 147 of the Act, without the Explanations (which Explanations are not relevant for our present purposes) is extracted below:

" 147. 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 this section, or recompute the loss of or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year):

Provided that where an assessment under subsection (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, unless any income chargeable to tax has escaped assessment for such assessment year by reasons of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of ‑section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year."

The pre‑condition for the exercise of the power under section 147 in cases where power is exercised within a period of four years from the end of the relevant assessment year is the belief reasonably entertained by the Assessing Officer that any income chargeable to tax has escaped assessment for that assessment year. However, when the power is invoked after the expiry of the period of four years from the end of the assessment year, a further pre‑condition for such exercise is imposed by the proviso namely, that there has been a failure on the part of the assessee to make a return under section 139 or in response to a notice issued under section 142 or section 148 or failure on the part of the assessee to disclose fully and truly all material facts necessary for, his assessment for that assessment' year. Unless, the condition, in the proviso is satisfied, the Assessing Officer does not acquire jurisdiction to initiate any proceeding under section 147 of the Act after the expiry of four years from the end of the assessment year. Thus, in cases where the initiation of the proceedings is beyond the 'period of four years from the end of the assessment year, the Assessing Officer must necessarily record not only his reasonable belief that income has escaped assessment but also the default or failure committed by the assessee. Failure to do so would vitiate the notice and the entire proceedings. The relevant words in the proviso are,

" ....unless any income chargeable to tax has escaped assessment for such assessment year by reasons of the failure on the part of the assessee..."

Mere escape of income is insufficient to justify the initiation of action after the expiry of four years from the end of the assessment year. Such escapement must be by reasons of the failure on the part of the assessee either to file a return referred to in the proviso or to truly and fully disclose the material facts necessary for the assessment.

Whenever a notice is issued by the Assessing Officer beyond a period of four years from the end of the relevant assessment year, such notice being issued without recording the reasons for his belief that income escaped assessment, it cannot be presumed in law that there is also a failure on the part of the assessee to file the returns referred to in the proviso or a failure to fully and truly disclose the material facts. The reasons referred to in the main paragraph of section 147 would, in cases where the proviso is attracted, include reasons referred to in the proviso and it is necessary for the Assessing Officer to record that anyone or all the circumstances referred to in the proviso existed before the issue of notice under section 147.

After an assessment has been made, in the normal circumstances, there would be no reason for anyone to doubt that the assessment has been made on the basis of all relevant facts. If the Assessing Officer chooses to entertain the belief that the assessment; has been made in the background of the assessee's failure to disclose truly and fully all material facts, it is necessary for him to record that fact, and in the absence of a record to that effect, it cannot be held that a notice issued without recording such a fact is capable of being regarded as a valid notice. As to whether the material facts disclosed by the assessee are full and true is always a question of fact and unless the facts disclosed had been examined in relation to the extent of failure if anyone the part of the assessee, it is not possible to form the opinion that there had been a failure on the assessee's part to truly and fully disclose the material facts. A notice issued without a record of the Assessing Officer's reasonable belief that there was such failure on the part of the assessee would be indicative of a failure on the part of the Assessing Officer to apply his mind to material facts, and on that ground‑ also the notice issue would be vitiated.

The reasons actually recorded and as set out by the officer in the counter‑affidavit are such that even after close scrutiny they do not establish even prima facie a failure on the part of the assessee to fully and truly disclose the material facts for the assessment..

The first reason set out in the counter‑affidavits is that excessive deduction had been allowed under section 80HHC. The assessee has placed before the Assessing Officer all statements, a perusal of which clearly shows that all the materials required for calculating the extent of benefits under section 80HHC and the actual calculation has been placed before the officer. The mistake, if any, is solely due to the mistake made by the officer and is not a mistake that is attributable to any failure on the part of the assessee. This fact is not seriously disputed by learned counsel for the. Revenue.

The second reason given is‑that there has been excessive allowance under section 32AB of the Act, and, therefore, some part of the income chargeable to tax has 'escaped assessment. Here again the detailed working given to the Assessing ‑Officer, a copy of which has been placed before the Court, shows that the mistake, if any, is a mistake committed by the Assessing Officer and is not a mistake that is attributable to the assessee's failure to place fully and truly the material facts.

It is the third and the last reason, which was sought to be sustained by learned counsel for the Revenue as affording sufficient basis for the notice under section 147. This relates to the Modvat adjustment of Rs.157.83 lakhs towards the excise duty paid by the assessee on the products manufactured by it. In the view of the Assessing Officer, the assessee has failed to take into account the corresponding credit for Rs.157,83 lakhs in the profit and loss account, and, therefore, the profits for the year have been understated to that extent. Learned counsel for the Revenue submitted that this failure was a failure an the part of tile assessee, and, therefore, the reopening was justified. According to counsel, the assessee cannot claim any part of the adjustment made by availing of the credit under the Modvat Scheme towards the amount shown as "assets" in the profit and loss account as the amount "paid" as "excise duty". Counsel submitted that it is only the amount paid through the deposit account that can be termed as having been paid, and the adjustment from and out of the Modvat account cannot be described as amount paid towards the excise duty. Learned counsel for the assessee/petitioner rightly pointed out that the assessee's obligation under the Central Excise Act is to pay duty on the goods manufactured by it and all amounts paid as duty can only be described as having been paid and by no other term, as any adjustment made towards that payment will only result in the assessee not having to pay the same once over and the result of the adjustment is the discharge of the assessee's liability for payment of excise duty. The profit and loss account can only show the amount of excise duty paid by it on the products manufactured by it and that is how the amount has been shown in the profit and loss account and the assessee, therefore, has not in any manner failed to disclose any fact necessary for ascertaining the amount paid by it as excise duty.

Learned counsel for the Revenue also invited the attention of this Court to two statements filed by the assessee before the Assessing Officer:

(1) Total excise duty paid during the year ended March 31, 1989, and

(2) Total P.L.A. abstract‑‑Excise duty deposit account. In the statement, the total excise duty paid, the assessee has set out the following:

A perusal of this statement shows that the assessee had placed before the Assessing Officer every relevant detail regarding the excise duty paid the manner in which the payment was effected; the amount paid through the deposit account; the amount adjusted from the Modvat account; the opening balance in the Modvat accrual account; the extent of the credit taken from that account; the extent for the amount utilised from that account as also the closing balance as on March 31, 1989. All the information required in relation to the account had been placed before the Assessing Officer. The assessee could not have done anything more.

The argument advanced by learned counsel for the Revenue that Modvat adjustment cannot be regarded as payment is wholly fallacious. Section 3 of the Central Excise Act, 1944, provides for the levy of excise duty on all exciseable goods produced or manufactured in India. The duty is to be "levied and collected in such manner as may be prescribed". The manner in which it is to be collected may be by one or more modes. However, after such collection, the result is the discharge of the obligation of the manufacturer to pay the duty which it is required to pay under section 3. One of the modes of payment of the excise duty is by way of adjustment of the credit given to the manufacturer of the duty paid by it on exciseable goods used as inputs, towards the duty payable by the manufacturer on the finished product. Rule 57A of the Central Excise Rules, 1944, provides fore allowing credit of any duty of excise or the additional duty under section 3 of the Customs Tariff Act as may be specified in the notification on the goods used in or in relation to the manufacture of final products and for "utilising the credit so allowed towards the payment of duty of excise leviable on the final products .... "The credit allowed is, therefore, a credit which is to be utilised towards the payment of duty. To state the obvious, the utilisation of the Modyal credit results in the payment of the excise duty on the final products to the extent of the credit utilised. The description given by the assessee to the payment so made as excise duty paid is the correct and normal term to describe the payment and no fault can be found with the assessee for using that term and not bifurcating that amount into the amount paid through the deposit account and the amount paid by adjustment of the Modvat credit. Moreover, the assessee had furnished detailed statements, which are extracted above, from which it is clear that all the information that was required, had been placed before the Assessing Officer. The third reason set out by the respondent in his counter‑affidavit as one of the reasons which led to forming a belief that the income had escaped assessment is certainly not a reason which can be said to be in any way the result of any failure on the part of the assessee to disclose truly and fully any faction relation to the Modvat account or the amount of excise duty paid. If there has been any error in computing the extent of the assessee's income, after taking note of the excise duty paid and the extent of accrual in the Modvat account as also the except of the credit utilised, that mistake is only attributable to the Assessing Officer and not to the assessee.

It is not the case of the Revenue that it is a requirement of any statute, rule or regulation or requirement of any known accounting practice that the excise duty paid and set out in the balance‑sheet or profit and loss account should show the break‑up of the Modvat adjustment or that the extent of the credit in the Modvat accrual account should be shown as part of the income or of the profit in the profit and. loss account. If the Assessing Officer was of the view that the amount available in the Modvat accrual account was required, to be treated as part of the assessee's income for the year of account, the Assessing Officer should have proceeded to compute the income by taking the same into account.

The duty of an assessee is limited to fully and truly disclosing all the material facts. The assessee is not required thereafter to prepare a draft assessment order. If the details placed by the assessee before the Assessing Officer were in conformity with the requirements of all applicable laws and known accounting principles, and material details had been exhibited before the Assessing Officer, it is for the Assessing Officer to reach such conclusions as he considered was warranted from such data and any failure on his part to do so cannot be regarded as the assessee's failure to furnish the material facts truly and fully. Any lack of comprehension on the part of the Assessing Officer in understanding the details placed before him cannot confer a justification for reopening the assessment, long after the period of four years had expired. On the facts of this case, it is clear that the escapement of income, if any, on this account is riot on account of any failure on the assessee's part to disclose the material facts fully and truly. The notice issued by the Assessing Officer in exercise of his power under section 147, therefore, cannot be sustained.

As the error here is one of jurisdiction it is not necessary for the assessee to have recourse to the remedies by, way of appeal, revision, etc. It is well‑settled that when a jurisdictional error is brought to the notice of this Court such errors are capable of being corrected by this Court in exercise of the Court's powers under Article 226 of the Constitution of India. The Supreme Court in the case of CIT v. Progressive Engineering (1993) 200 ITR 231 (sic), held that when all the relevant facts were before the Court and the law is clear on the subject, it is the duty of the High Court to interfere. That was also a case where the proceedings were sought to be initiated against the assessee under section 147 of the Act.

The impugned notice is, therefore, quashed. The respondent is prohibited from taking any further proceedings, pursuant to that notice. The writ petition is allowed, with cost of Rs.2,000. Connected W.M.P's. are closed.

M.B.A./643/FC?????????????????????????????????????????????????????????????????????????????????? Petition allowed.