icici bandk ltd vs. dr ramsingh dy commissioner of income tax,
What did the High Court hold?
The High Court held that the impugned notice dated March 23, 2005, was partly valid. Regarding bad debts, the Court found no merit in the Revenue's contention that there was a failure to disclose. The Petitioner-Bank had made a full and true disclosure in its return, and the claim was fluid and dependent on factors that could change. The Assessing Officer had considered the claim and allowed it, making the reopening based on this ground a mere change of opinion. Therefore, the notice was not interfered with concerning bad debts. However, concerning depreciation on leased equipment, the Court found that the equipment was commissioned on March 31, 1998, as evidenced by the Karnataka Electricity Board certificate, indicating it was put to use. The Revenue's argument that the equipment was not put to use was a change of opinion, as the Assessing Officer had previously considered and allowed the depreciation claim. The Court cited CIT v. Shaan Finance (P) Ltd. to support the view that giving machinery on hire constitutes its use for business. Consequently, the notice was set aside to the extent it related to depreciation on equipment. The petition was partly allowed.
What were the facts?
The Petitioner-Bank, ICICI Bank Limited, filed its return of income for Assessment Year 1998-99 on November 30, 1998, declaring an income of Rs. 57.52 Crores. The bank claimed depreciation on windmill generators leased to M/s. Renewable Engineering Systems Ltd. (RESL) and bad debts after adjusting provisions under Section 36(1)(viia). During assessment proceedings, the bank provided details of the leased equipment, stating it was installed and commissioned by RESL on March 31, 1998, and that RESL was not claiming depreciation. The bank also provided details for its bad debt claim of Rs. 10.12 Crores. The Assessing Officer passed an assessment order under Section 143(3) on February 28, 2001, determining the income at Rs. 60.94 Crores and allowing the claims for bad debts and depreciation. On March 23, 2005, the Assessing Officer issued a notice under Section 148 to reopen the assessment for AY 1998-99.
What were the issues?
1. Whether the notice dated March 23, 2005, issued under Section 148 of the Income Tax Act, 1961, for reopening the assessment for AY 1998-99 is without jurisdiction, as the reasons provided do not indicate any failure on the part of the Petitioner-Bank to disclose fully and truly all material facts necessary for assessment? Assessee's Arguments: (a) The notice is without jurisdiction as the reasons do not show any failure to disclose material facts. (b) Regarding bad debts, full disclosure was made in the return. The claim is fluid and dependent on total income, which can vary in appeals. The reopening is based on a mere change of opinion as the Assessing Officer had allowed the claim after considering all facts. (c) There cannot be a failure to disclose facts within the knowledge of the Revenue, such as orders passed by the Assessing Officer. (d) Any error in the assessment order could be corrected by rectification, not by reopening under Sections 147/148, which could prejudice the assessee by allowing reassessment of other income. (e) A statement working out correct figures for bad debts and copies of appellate orders were provided. Revenue's Arguments: (1) Regarding bad debts, the assessee had a larger credit balance of Rs. 7,15,06,898 than what was reduced (Rs. 2,08,55,805), leading to a lower allowable deduction. This indicated a failure to disclose fully and truly. (2) Regarding depreciation on leased assets to RESL, the equipment was not put to use during the previous year relevant to AY 1998-99, as it was taken back by the bank in March/April 1999 and put to use from June 1999. This constituted a failure to disclose fully and truly.
Which sections of the Income-tax Act were involved?
Section 36(1)(viia),Section 148,Section 143(3),Section 147,Section 32
AI-generated summary — verify with the full judgment below
wp-2355-2005.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURI ICTION WRIT PETITION NO. 2355 OF 2005 ICICI Bank Limited ] a public limited company, having its ] registered office at ICICI Towers, ] BandraKurla Complex, Mumbai 400 051. ] .. Petitioner. V/s. 1 Dr. Ramsingh ] Dy. Commissioner of Income Tax ] Range 3(1), having his office at ] Aaykar Bhavan, 6th Floor, Maharshi ] Karve Marg, Mumbai 400 020. ] 2 Union of India ] through Ministry of Law, ] Aaykar Bhavan, M. Karve Marg, ] Mumbai 400 020. ] .. Respondents. Ms. A. Vissanji, Advocate for the Petitioner. Mr. P. C. Chhotrary, Advocate for the Respondents. CORAM: M.S.SANKLECHA, & N.M.JAMDAR, JJ. DATE : 25th AUGUST, 2014. JUDGMENT (Per M. S. Sanklecha,J.): This Petition is directed against the impugned notice dated 23rd March 2005 issued under Section 148 of the Income Tax Act, 1961 (the Act). The impugned notice dated 23rd March 2005 seeks to reopen the assessment for the Assessment Year 199899. S.R.JOSHI 1 of 21 CNR No : HCBM020168632005 Uploaded on - 21/08/2020 wp-2355-2005.sxw The PetitionerBank carries on business of Banking. On 30th November 1998, the Petitioner filed its Return of Income for the Assessment Year 199899 returning an income of Rs.57.52 Crores. In its Return of Income, the PetitionerBank, inter alia, claimed depreciation on Windmill Electric Generators (Equipments) which had been leased to one M/s. Renewable Engineering Systems Ltd. (RESL) and also claimed bad debts after adjusting the balance under Section 36 (1)(viia) of the Act. 3 During the course of Assessment proceedings, consequent to a query, the Petitioner filed on 17th February, 2000, details of the Equipments leased to RESL. The PetitionerBank in its detailed note, pointed out that the equipment was installed and commissioned by RESL on 31st March 1998 and in support, also filed evidences. Besides filing evidences in support of its stand, that the lessee viz. RESL is not claiming any depreciation on the equipment. Similarly, on 25th September, 2000, on an enquiry by the RespondentRevenue with regard to the bad debts claimed, the PetitionerBank pointed out it was being claimed at Rs.10.12 Crores after adjusting the provisions under Section 36(1)(viia) of the Act amounting to Rs.2.08 Crores . 4 On consideration inter alia of the aforesaid facts, the Assessing Officer on 28th February, 2008, passed an Assessment Order under Section 143(3) of the Act for Assessment Year 198999. The above order dated 28 February 2008, determined the Petitioner's income at Rs.60.94 Crores and allowed the claim for deduction on account of bad debts of Rs.10.12 Crores (as claimed) and the claim for depreciation at Rs.4.50 Crores on the Equipments leased to RESL. S.R.JOSHI 2 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw On 23rd March 2005, the Assessing Officer issued the impugned notice, seeking to reopen the assessment for the Assessment Year 199899. The reasons furnished to the PetitionerBank for reopening of the assessment were as under: “ REASONS RECORDED FOR REOPENING OF Assessment Return of Income was filed on 30111998 determining total income of Rs.57,52,24,190/. Assessment u/s.143(3) was completed vide order dated 28022001 determining total income at Rs.60,94,73,991/. (1) It is seen from the records that the assessee has claimed deduction u/s. 36(1)(vii) in respect of bad debts written off of Rs.12,21,51,941/. The assessee has reduced Rs.2,08,55,805/ being credit balance in accounts u/s.36(1)(vii) and has claimed the balance amount of Rs.10,12,96,136/ u/s. 36(1)(viia) of the I. T. Act. The assessee has reduced only Rs.2,08,55,805/ whereas as per records, the assessee is having credit balance of Rs.7,15,06,898/ (which is inclusive of deduction allowed u/s. 36(1)(viia) for the year 199899). After reducing this amount, the allowable deduction u/s. 36(1)(viia) in respect of bad debts written off comes to Rs.5,06,45,043/ (12,21,51,941 () 7,15,06,898). (2) It is also seen from the records that the assesseebank has claimed depreciation on leased assets at Rs.8,22,49,860/. This amount is inclusive of Rs.4.80 Crores claimed on assets valuing Rs.9.60 Crores leased to Renewable Energy Systems Ltd., Hyderabad (Depreciation claimed @ 50%). The department has disallowed the claim of depreciation on assets leased except assets leased to Renewable Energy Systems Ltd., Hyderabad. Depreciation of Rs.4.80 Crores claimed as assets leased to Renewable Energy Systems Ltd., Hyderabad has been claimed on the ground that assets leased out was taken back by the assessee bank and used for their own business. From the records, it is seen that the assets were taken by the Bank in March, 1999/ April, 1999 and put to use from June 1999 onwards. Since the assets were not put to use during the previous year relevant to Assessment Year 199899, the claim of depreciation needs to be disallowed. S.R.JOSHI 3 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw I have therefore reason to believe that income chargeable to tax has escaped Assessment by the reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for Assessment. Therefore the Assessment is required to be reopened in view of Explanation 2(c) to Section 147. Issue notice u/s. 148.” 6 This Petition was admitted on 17 October 2005 and the impugned notice dated 23 March 2005 was stayed. 7 Ms. Vissanji, learned Counsel appearing for the Petitioner Bank in support of the Petition, submits as under: (a) The impugned notice dated 23rd March 2005 is without juri iction as the reasons in support does not indicate any failure on the part of the PetitionerBank to disclose fully and truly all material facts necessary for assessment; (b) In respect of the bad debts, it is submitted that there is a complete disclosure made by the PetitionerBank in its Return of Income. The claim was made in its return as per the Petitioner's original figures without taking into account the variation on the quantum of the provisions for bad debts due to orders of rectification or orders passed in the Appellate proceeding for the earlier years. The claim for deduction of bad debts for a bank by its very nature is fluid/uncertain as it is dependent upon the provisions made for bad debts which in turn is dependent upon total income under Section 36 (viia) of the Act,. The determination of total income is subject to variation in appeal proceedings. In view of the above, the Petitioner's claim for bad debts cannot be said to be failure to S.R.JOSHI 4 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw disclose truly and full material facts for assessment. Besides the Assessing Officer has allowed the claim on consideration of all facts and therefore, the reopening notice is based on mere change of opinion; (c) Without prejudice to and in the alternative to the above, it is submitted that there can be no failure on the part of the Petitioner Bank to disclose truly and fully facts necessary for assessment when the facts not disclosed are within the knowledge of Respondent Revenue. In particular, failure to disclose is of the orders passed by the Assessing Officer. There can be no failure to disclose orders to the knowledge of the Assessing Officer as they emanate from the office of the RespondentRevenue; (d) In any view of the matter, if there is any error/ omission in passing the Assessment Order then such error/omission can be corrected by adopting rectification proceedings and/or by giving effect to orders passed by the Appellate Authorities, it may be found that the claim as made is correct. In the above circumstances, the adoption of Sections 147/148 of the Act is not justified. This is because the reopening of an assessment could entail serious prejudice to the Petitioner as it would enable the Respondent Revenue to reassess even other income in terms of Explanation 3 to Section 147 of the Act; (e) A statement working out the correct figures for purposes of computation of bad debts was tendered along with copies of various appellate orders passed in the Petitioner's own case for the S.R.JOSHI 5 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw Assessment Year 199495 during the hearing. It is submitted that above statement would indicate that, even if reassessment proceedings on account of bad debts are allowed to be proceeded with, the entire exercise would be only academic as the result would be no income escaping assessment on account of bad debts; and (f ) So far as depreciation is concerned, it is submitted that during the course of assessment proceedings, specific queries were raised with regard to equipment leased to RESL. In response, a detailed note was filed by the PetitionerBank, pointing out that the equipments was put to use in the subject Assessment Year, as it was commissioned on 31st March, 1998 at Belgaum by RESL duly supported by evidence. The Assessing Officer in the Assessment Order dated 28th February, 2001 on consideration of all facts concluded that the equipment was put to use on 31 March 1998 entitling the Petitioner's to avail the benefit of depreciation on the leased equipments under Section 32 of the Act. Thus there was no failure to disclose all facts truly and fully on the part of the PetitionerBank. Besides the very issue raised in the grounds in support of the impugned notice was considered by the Assessing Officer in the Assessment Order dated 28 February 2001. Therefore, the impugned notice has been issued on mere change of opinion. 8 As against the above, Mr. P. C. Chhotrary, learned Counsel appearing for the RespondentRevenue, in support of the impugned notice dated 23rd March 2005, submits as under: S.R.JOSHI 6 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw (a) There has been a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for Assessment. Consequently the impugned notice dated 23rd March 2005 does satisfy the juri ictional requirement under the proviso to Section 147 of the Act in respect of notices issued beyond the period of four years from the end of the relevant Assessment Year; (b) So far as bad debts is concerned, it is submitted that the Petitioner Bank had claimed more bad debts then it was entitled to on application of Section 36 (viia) of the Act. At the time when the PetitionerBank filed its Return of Income as well as during the Assessment proceeding, the PetitionerBank was aware that the provisions for bad debts made by them had undergone change due to rectification and/or appellate orders for the earlier Assessment Years yet the same was ignored by the PetitionerBank. The consequence of the orders passed for the earlier Assessment Year would have a direct bearing on determining the claim for bad debts allowable during subject Assessment Year 199899. Thus, there was a was a failure to disclose truly and fully all facts necessary for assessment not only at the time of filing its Return of Income but also during the Assessment proceedings, when a specific query was raised with regard to the accumulated provisions under Section 36(1)(viia) of the Act; (c) It is the obligation of the PetitionerBank to disclose fully and truly all facts necessary for assessment. This obligation is an independent obligation on the part of the PetitionerBank and it is no defence to state that the RespondentRevenue knew the facts and/or had S.R.JOSHI 7 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw knowledge of the same, to absolve the PetitionerBank of its obligation; (d) The error/ omission in the Assessment Order arising out of the failure on the part of the Petitioner to disclose truly and fully all material facts necessary for assessment is not such as can be modified/ amended by taking recourse to Section 154 of the Act as it could give rise to a debate. Besides the issue of giving effect to the orders of the Appellate Authorities is an independent function which would be done by the Assessing Officer and cannot be a pretext to stall/ scuttle validly initiated reopening proceedings; (e) So far as statement tendered by the PetitionerBank is concerned, the same would be considered by the Assessing Officer during the reassessment proceedings. It is an issue on merits and would require detailed examination which is best left to the Assessing Officer to consider during reassessment proceedings; and (f) So far as depreciation is concerned, it was submitted that the PetitionerBank had incorrectly stated during original Assessment proceeding that the equipments were put to use on 31st March1998. This is on the basis that the certificate issued by Karnataka State Electricity Board merely states that it was commissioned on 31st March, 1998. Besides, it is submitted that the depreciation would be available to the PetitionerBank only if it itself uses the equipment in question. Therefore it is submitted that there was failure to disclose truly and fully all material facts necessary for assessment. S.R.JOSHI 8 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw In the present case, the impugned notice dated 23rd March, 2005 has been issued beyond the period of four years from the end of the relevant Assessment Year i.e. Assessment Year 199899. The contours of the reopening notice under Section 148 of the Act have been long settled by the decision of the Supreme Court in Commissioner of Income Tax v/s. Kelvinator of India Limited 320 ITR 561 wherein it has been held that reason to believe that income chargeable to tax has escaped assessment would not mean a mere change of opinion. Therefore when the issue/ground on which it is proposed to reopen the assessment has been subject of consideration earlier while passing an Assessment Order then on the same facts, a different view cannot be taken for the purposes of reopening an assessment. The Court held that the Assessing Officer has power under the Act only to reassess and not to review a concluded assessment. Besides, while examining the challenge to juri iction, we are not sitting in appeal over the grounds in support of the impugned notice. Thus the PetitionerBank would have to demonstrate that ex facie, the grounds in support of the impugned notice are without juri iction. It is settled position that at the stage of the reopening notice, the Assessing Officer has only to reach a primafacie view and not a conclusive view of income having escaped assessment. Thus we would quash a notice for reopening of an assessment only when the same is without juri iction i.e. in no way can it even be alleged on the facts that income chargeable to tax has escaped assessment or where the notice is on the basis of mere change of opinion or in case where reopening notice is issued beyond a period of four years from the end of the relevant Assessment Year in the in the absence of any failure to disclose fully and truly all facts necessary for assessment. It is on the above parameters of law, that we S.R.JOSHI 9 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw would examine the facts arising in the present case. 10 The assessment which is sought to be reopened beyond a period of four years from the end of the relevant Assessment Year has to satisfy the following juri ictional requirements: (a) The Assessing Officer must have reason to believe that income chargeable to tax, has escaped the assessment; and (b) There must have been a failure on the part of the Petitioner to fully and truly disclose all material facts necessary for assessment. 11 The reasons recorded for issuing the impugned notice as reproduced herein above is with regard to excessive claim for bad debts and depreciation on equipments leased to RESL for Assessment Year 1998 1999. This Petition has been filed prior to Supreme Court decision in GKN Driveshafts Ltd v. Income tax Officer 251 ITR. Therefore in the present facts, no objection were raised by the PetitionerBank to the grounds in support of the impugned notice relied upon by the RespondentRevenue. Consequently, no occasion arose for the Assessing Officer to deal with same. The Petition was filed on receipt of the impugned notice dated 23rd March 2005. The reasons/grounds in support of the impugned notice was served upon the PetitionerBank along with the affidavit in reply dated 7th October 2005. The reasons indicate two separate grounds for the impugned notice i.e. Bad Debts and Depreciation. We shall deal with each of the two grounds, separately. Bad Debts : 12 It is the case of the RespondentRevenue as stated in the S.R.JOSHI 10 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw reasons recorded that, if the correct figures of the provisions for bad debts is taken into account, the PetitionerBank would be entitled to claim bad debts only to the extent of Rs.5.06 Crores and not Rs.10.12 Crores. This is on account of the fact that provisions for bad debts under Section 36(1)(viia) of the Act would be Rs.7.15 Crores and not Rs.2.08 Crores as claimed in the Return of Income and also during assessment proceedings. The first objection of the PetitionerBank is that the reasons do not indicate any failure on its part to disclose fully and truly all facts necessary for assessment. However in its Affidavit in rejoinder by the Petitioner states as under : “ Secondly, at the time the Petitioner filed its Return of Income for the relevant year on 30th 1998, while the rectification order dated 2/3/1998 for the Assessment year 199596 was available with the Petitioner, the Petitioner had not received the Assessment orders for the remaining 2 Assessment years 199697 and 199798 which were passed subsequently on 23/3/1999 and 31.1.2000 respectively.
Accordingly the working of the claim under sect. 36 (1)(viia) was based on the deduction claimed by the Petitioner for the Asst. Years 199697 and 199798. Since the deduction allowable under Sec. 36 (1)(viia) for asst. Years 199596 was liable to change consequent to relief allowed in appellate proceedings and the quantum of deduction for Asst. Years 1996 97 and 199798 were not available the Assessment orders for the said years not having been passed, the Petitioner worked out its claim under sec.36(1)(viia) for the relevant year on the basis of the quantum of deduction originally allowed and/or claimed in the returns of income for the Assessment years 1996 97 and 199798. Accordingly, the Petitioner has neither concealed the facts relating to its claim for deduction under Sec. 36(1)(viia) nor has the Petitioner stated any untrue facts in the return filed for the relevant year. It is respectfully submitted that the Petitioner has not been allowed and excess deduction and the deduction to be granted to Petitioner under Sec.36(1) S.R.JOSHI 11 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw (viia) for bad debts will change with each subsequent order passed to give effect to the appellate orders, as the deduction to be granted under sec.36(1)(viia) is consequential to the total income determined.” Thus the PetitionerBank admits that the claim made for bad debts was on the basis of deduction originally claimed for Assessment Years 19951996, 19961997 and 19971998 without taking into account the figures determined by rectification order dated 2 March 1998 i.e. before filing of Return of Income on 30 November 1998. Moreover, the Assessment Orders passed on 23 March 1999 and 31 January 2000 for the Assessment Years 199697 and 19971998 respectively were passed much before passing the Assessment Order on 28 February 2001 and yet the same was not brought to the notice of the Assessing Officer. The PetitionerBank is not disputing the above facts but making a legal claim that even if the facts are not disclosed, it makes no difference as the same are subject to change by virtue of orders passed in appeal from Orders passed in the earlier Assessment Years. Therefore on the aforesaid facts, it is clear that the PetitionerBank is aware and can not dispute failure to disclose truly and fully material facts necessary for assessment. In the above circumstances, it ill comes from a party seeking to invoke extra ordinary writ juri iction of this court to make a grievance of the reasons not indicating failure to disclose truly and fully all material facts necessary for assessment. The grievance of the reasons not indicating any failure, is available to a party who is at a loss to understand what is the failure of disclosure alleged in the notice for reopening in the exercise of writ juri iction. The knowledge of the alleged failure on the part of the PetitionerBank is evident in its affidavit in rejoinder. 13 The next objection raised is that there is in fact no failure to S.R.JOSHI 12 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw disclose truly and fully facts necessary for assessment. In support it is submitted that in terms of Section 36(1)(vii) and (vii a) of the Act, the PetitionerBank is allowed to write off bad debts only to the extent the bad debts exceeded the credit balance in the provisions for bad and doubtful debts. In terms of Section 36 (1)(viia) of the Act, the Petitioner Bank can make provisions for bad and doubtful debts of an amount not exceeding 5% of the total income. In the above context, it was submitted that the provisions for bad and doubtful debts would be a varying figures as the amount of provisions would be dependent upon the total income which is arrived at by the Assessing Officer as modified in appeal proceedings. Thus, it was in the above circumstances, the PetitionerBank had made a claim for bad debts in its Return of Income without having taken into account the orders passed on 2nd March 1998 under Section 154 of the Act for the Assessment Year 199596 as the same, according to the Petitioner, was subject to change in view of the further appeals. Similarly, the Orders of Assessment passed for Assessment Years 199697 and 199798 on 23 March 1999 and 31 January 2000 respectively, were not brought to the notice of the Assessing Officer during the assessment proceedings for Assessment Year 199899 as the same was subject to change in the Appellate proceedings. The obligation of the assesee is to make a full and complete disclosure of all facts material for assessment. The legal consequence of such disclosure is a different matter particularly when the nondisclosure could lead to escapement of income. In this case no note was also appended to the return of Income indicating that the figures of bad debts claimed is subject to change in view of the appellate proceedings. In view of the above, we hold that there is a failure on the part of the PetitionerBank to disclose fully and truly all material facts S.R.JOSHI 13 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw necessary for assessment. 14 In the alternative, it is submitted that in any case there can be no failure to disclose facts which are within the knowledge of the RespondentRevenue –particularly the Assessing Officer. It is submitted that all the three orders viz.. order dated 2 March 1998 (rectification), 23 March 1999 (Assessment Order) and 31 January 2000 (Assessment Order) were within the knowledge of the Assessing Officer, as these orders emanated from his office. Thus, it cannot be said that there was a failure on the part of the Petitioner to disclose truly and fully all material facts necessary for assessment. In support, reliance was placed upon the decision of the Allahabad Court in Jagdish Prasad v/s. Commissioner of Income Tax –104 ITR 214 – wherein the Court held that the extended period for reopening the assessment on account of failure to disclose truly and fully all material facts necessary for assessment would not apply where the Assessing Officer was aware of true facts of the case at the time when he passed the Assessment Order. With the greatest of respect, we are unable to agree with the view of the Hon’ble Allahbad High Court in Jagdish Prasad (supra). The obligation of making true and full disclosure is on the assessee and the responsibility for doing the same, cannot be wished away by stating that the Assessing Officer was aware or ought to have been aware of the true facts in view of the Assessment Orders passed in the earlier Assessment Year. The obligation to disclose facts material for assessment fully and truly is on the assessee in unqualified terms in the proviso to Section 147 of the Act. In fact, during the assessment proceedings, the Assessing Officer on 12th September, 2000 did enquire of the PetitionerBank about the amount that was adjusted out of the accumulated provisions under Section 36(1) (vii a) of the Act. At S.R.JOSHI 14 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw that point of time, the PetitionerBank was aware of the orders passed for the Assessment Years 199596, 199697 and 199798. However, in its reply dated 25th September, 2000, the PetitionerBank did not bring to the notice of the Assessing Officer the change in the quantum of provisions created under Section 36(1) (vii a) of the Act and continued to claim the old figure of Rs.2.08 Crores instead of Rs.7.15 Crores as provisions for bad debts. Therefore, there is a failure on the part of the PetitionerBank to truly and fully disclose all material facts necessary for assessment not only at the time when the Return of Income was filed on 30th November 1998 but also during the assessment proceeding leading to the order dated 28th February 2001. 15 It was also contended that this issue/ground of bad debts in the impugned notice is a change of opinion in as much as the same was a subject matter of consideration during assessment proceedings is not acceptable. This is particularly so as there is a failure on the part of the PetitionerBank to disclose truly and fully the material facts necessary for assessment. Consequently as the application of mind was on facts not fully and truly disclosed there can be no opinion formed on the true and full facts for there to be a change of opinion. The RespondentRevenue placed reliance upon the following observations of the Supreme Court in Phool Chand Bajrang Lal v/s. ITO 203 ITR 456 as under: “ We are not persuaded to accept the argument of Mr. Sharma that the question regarding the truthfulness or falsehood of the transactions reflected in the return can only be examined during the original Assessment proceeding and not at any stage subsequent thereto. The argument is too broad and general in nature and does violence to the plain phraseology of sections 147(1) and 148 of the Act and is against the settled law laid down by this court. We have to look to the purpose S.R.JOSHI 15 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw and intent of the provisions. One of the purposes of section 147 appears to us to be to ensure that a party cannot get away by wilfully making a false or untrue statement at the time of original Assessment and when that falsity comes to notice, to turn around and say “you accepted my lie, now your hands are tied and you can do nothing”. It would be a travesty of justice to allow the assessee that latitude.” 16 It was next contended on behalf of the PetitionerBank that in any view of the matter, the aforesaid error/ omission in computing the correct claim for bad debts is a mere computation error amenable to correction by rectification order or an error which would stand corrected by giving effect to orders passed by Appellate Authorities. Therefore there is no warrant in invoking the reopening provisions in Section 147 of the Act. This reopening of an assessment, it is submitted could entail serious prejudice to the PetitionerBank as it would enable the Respondent Revenue to reassess any other income in terms of Explanation 3 to Section 147 of the Act. Reliance is placed by the PetitionerBank upon the decision of this Court in Hindustan Unilever Ltd. v/s. Deputy Commissioner of Income Tax – 325 ITR 102 – wherein this Court held that the Assessing Officer should not exercise the power of reopening the assessment merely because of computational error as the same can be done by exercising power of rectification under Section 154 of the Act. One must not loose the sight of the fact that in the above case, the Court emphasizes that the error in the order of the assessment was not attributable to a lapse or omission on the part of the assesses. In the present case, even if one accepts that there is an error, the same has arisen on account of failure on the part of the PetitionerBank to disclose fully and truly all material facts necessary for assessment. Moreover in the present case, the issue whether or not the incorrect taking of provision leading to a higher claim of bad S.R.JOSHI 16 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw debts is not a mere computational error could be a debatable issue, as is evident from the fact that the PetitionerBank during the course of the submissions relied upon Instruction of the CBDT dated 26 November 2008 to contend that the credit balance of the provision to be taken is the opening balance of the relevant accounting year and not the closing balance. Therefore in our view, the decision of the Hindustan Unilever Ltd (supra) is not applicable to the present facts. In any case the period to four years to reopen an assessment has already expired when the impugned notice was issued. So far as giving effect to the orders of the Appellate Authorities are concerned, the same would be given independently by the Assessing Officer and its impact, if any, could be considered during the reassessment proceedings. 17 During the course of hearing, Ms. Vissanji, learned Counsel appearing for the PetitionerBank filed a statement to demonstrate that no income chargeable to tax, has escaped assessment. She also placed reliance upon orders passed by the Appellate Authorities in respect of Assessment Year 199596 which if taken into account, according to her, would establish that no income chargeable to tax has escaped the assessment. This is not accepted by Mr. Chhotrary learned Counsel for the RespondentRevenue. According to him, this requires a detailed examination and this could be best done during reassessment proceedings. We do not find that in the present facts one can conclude that exfacie, no income chargeable to tax has escaped the assessment. The exercise would be carried out by the Assessing Officer in the re assessment proceedings and the same would be a detailed examination to find out whether any income chargeable to tax has escaped assessment. S.R.JOSHI 17 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw At the present stage, the Assessing Officer must only have reasonable belief that income chargeable to tax has escaped assessment and not be conclusively satisfied that income has in fact escaped assessment. In exercise of our writ juri iction under Article 226 of the Constitution of India, we are concerned with juri ictional issues. The PetitionerBank have not bee able to show that the impugned notice dated 23rd March 2005 is without juri iction, in so far it relates to claim for bad debts for the Assessment Year 199899. Depreciation: 18 It is the case of the RespondentRevenue that the equipment leased to RESL were not put to use nor used by the Petitioner in the previous year relevant to Assessment Year 199899. Mr. Chhotrary, learned Counsel appearing for the RespondentRevenue strongly contended that the equipments have not been put to use by the PetitionerBank during the Assessment Year 199899. He submitted that the PetitionerBank had only stated that the equipment was 'commissioned' during the Assessment Year 199899 and it was not stated that it was 'put to use'. According to him, since the depreciation can be claimed only if the equipment is put to use, there was no full and true disclosure. The undisputed facts which were brought out in a note filed on 17 July 2000 during the assessment proceedings clearly bring out the following facts: (a) The equipments were installed and commissioned by RESL on 31st March 1998. This was duly supported by certificate issued by Karnataka Electricity Board, which records that the Equipments were connected to Karnataka State Electricity Board grid and S.R.JOSHI 18 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw commissioned on 31st March, 1998. (b) Depreciation on the equipments was not being claimed by RESL as evidenced by the certificate of the leasee's Chartered Accountant that no depreciation was claimed by the RESL on the equipments; and (c) The possession of the leased equipments was taken from RESL in March/April 1999 due to failure to pay the installments. There is no merit in the submission that there was no full and true disclosure about the equipments being put to use. The equipment in question was windmill. Karnataka Electricity Board had issued a certificate that the windmill was connected to the grid on 31st March 1998. Once the windmill was connected to the grid, it started contributing to the production of electricity. A windmill is put to use when it connected to the grid. Therefore, in this case, we are not called upon to examine the distinction if any, between 'commissioning' and 'putting it to use', considering the nature of the equipment. It may be pointed out that the Revenue did not point out any difference between the two i.e. 'commissioning' and 'putting it to use'. The confirmation of Karnataka State Electricity Board is clear. Thus, there is no failure on the above aspect to make a full and true disclosure by the Petitioner. Besides, the certificate of Karnataka State Electricity Board was before the Assessing Officer while making the assessment under Section 143(3) of the Act and forming an opinion that the equipments were put to use on 31 st March, 1998. Therefore, the ground that the equipments were not put to use on 31st March, 1998, is a mere change of opinion. S.R.JOSHI 19 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw The Assessing Officer in the Assessment Order dated 28th February 2001 examined the Petitioner's claim and granted depreciation at the rate of 50% on the equipments after having examined the applicability of Section 32 of the Act. The Assessment Order also makes a reference to the decision of the of the Supreme Court in CIT v/s. Shaan Finance (P) Ltd., 231 – ITR 308 – wherein it has been held that when the assessee's business is giving on hire machinery, then the assessee must be considered to have used the machinery for the purpose of its business when it gives the machinery on hire. Thus there was an application of mind and formation of opinion by the Assessing Officer while passing the Assessment Order dated 28 February 2001. 19 Therefore the impugned notice dated 23rd March 2005 seeking to reopen the assessment on the ground of depreciation is merely a change of opinion on the part of the Assessing Officer. Consequently, the reasons recorded for reopening the assessment for the Assessment Year 199899 on the ground of depreciation is not sustainable. Therefore, we set aside the reopening notice to the extent it relates to depreciation on equipments. 20 In view of the above, we pass the following order: (i) The impugned notice dated 23rd March 2005 is not interfered to the extent the reasons in support thereof are with regard to bad debts; and (ii) The impugned notice dated 23rd March 2005 is set aside to the extent the reasons in support thereof are with regard to depreciation on equipments. S.R.JOSHI 20 of 21 Uploaded on - 21/08/2020 wp-2355-2005.sxw Therefore, the impugned notice dated 23rd March 2005 is valid only to the extent it seeks to reassess the PetitionerBank on account of its claim for bad debts. 21 Accordingly, Petition is partly allowed. No order as to costs.
(N.M.JAMDAR,J.) (M.S.SANKLECHA,J.)
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