COMMISSIONER OF INCOME TAX Vs. VEER OVERSEAS LTD.

JUDGEMENT

(1.) NEW Delhi in ITA No. 4752/Del/2007 in respect of the asst. yr. 1998 -99. The original assessment was made under s. 143 has found that proviso to s. 147 of the Act is applicable in this case. The proviso provides that no action shall be taken 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 reason of the failure on the part of the assessee to file return under s. 139 or in response to a notice issued under s. 142(1) or s. 148 of the Act or to disclose fully and truly all material facts necessary for assessment in that assessment year. The Tribunal has recorded a finding that there was no failure on the part of the assessee respondent which may be covered by any of the aforesaid provisions.

(2.) THE Tribunal proceeded to consider whether the assessee respondent had failed to disclose all material facts necessary for assessment in the original regular assessment made under s. 143(3) of the Act. The AO had allowed deductions under s. 80HHC of the Act with reference to DPEB receipts. It has disclosed all the facts in respect of their export earning. The AO adjudicated the issue with regard to the claim of the assessee for deductions under s. 80HHC of the Act in regular assessment. All the relevant documents which were sought by the AO were produced. The assessee had received export incentive of Rs. 65,51,988 on account of Reserve Export Permit (REP) as per the details submitted to the AO. The Tribunal has recorded a categorical finding that details of export incentives were submitted in full detail by the assessee respondent before the AO during the course of original assessment proceedings. It is in the aforesaid circumstances that the Tribunal proceeded to examine whether the AO could have taken resort to the provisions of s. 147 of the Act and issued notice under s. 148 of the Act. The Tribunal has opined that it is not justified in the backdrop of the finding that there was no failure on the part of the assessee to disclose fully and truly all material facts.

(3.) WE have heard the learned counsel for the Revenue. Once categorical findings have been recorded by the Tribunal that there was no concealment in disclosing the facts to the AO, it was not open to the AO to invoke the provisions of s. 148 of the Act for the purposes of reassessment. On the last date of hearing, we had asked the learned counsel for the Revenue for placing on record the reasons which have lead to the issuance of notice under s. 147 of the Act. The reasons disclosed are that after regular assessment was completed under s. 143(3) of the Act, certain judgments with regard to claiming deduction under s. 80HHC were reported and on that basis it was alleged that the assessee respondent had claimed excess deductions under s. 80HHC on export incentive in the shape of REP. In that regard reliance has been placed on two judgments of the Madras High Court rendered in the cases of CIT vs. Jameel Leathers & Uppers (2000) 246 ITR 97 (Mad) and CIT vs. Viswanathan & Co. (2003) 181 CTR (Mad) 335 : (2003) 261 ITR 737 (Mad). It has been held in both the judgments that duty drawback and import entitlement are the incomes which are not derived from the business, though these are attributable to business carried on by the assessee. Likewise, certain other judgments have been relied upon. A copy of the reasons is taken on record as mark "A".