Delhi High Court

Dalmia Brothers Private Limited vs Commissioner Of Income Tax Delhi ... on 23 November, 2011

Author: Sanjiv Khanna

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  REVIEW PETITION NO. 650/2011 IN W.P. (C) NO.
                   6205/2010


                                         Reserved on : 9th November, 2011.
%                                     Date of Decision : 23rd November, 2011.


DALMIA BROTHERS PRIVATE LIMITED           .... Petitioner
            Through Mr. R.M. Mehta, Advocate.

                   VERSUS
COMMISSIONER OF INCOME TAX DELHI 10 AND ANOTHER
                                       .....Respondents

Through Mr. Sanjeev Sabharwal, Advocate. CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V. EASWAR

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest?

SANJIV KHANNA, J.:

This review petition has been filed by Dalmia Brothers

Private Limited, the petitioner on the following grounds:

(1) In the judgment Court has relied upon decision/judgments,

which were not cited at the time of arguments.

(2) The decision of the Division Bench of the Delhi High Court

in Consolidated Photo and Finvest Limited versus

Assistant Commissioner of Income Tax, (2006) 281 ITR

394 (Del) has been adversely commented upon, if not

dissented in K.L.M. Royal Dutch Airlines versus A.D.I.T,

(2007) 292 ITR 49 (Delhi), CIT versus Eicher Limited,

(2007) 294 ITR 310 (Delhi) and CIT versus Goetze India

Limited, (2010) 321 ITR 431 (Del) and the ratio of the said

decision runs counter to the Full Bench decision of this

Court in CIT versus Kelvinator India Limited, (2002) 256

ITR 1(Del.), which has been approved by the Supreme

Court in (2010) 320 ITR 561 (SC).

(3) In the decision, the Court has relied upon the records

produced by the Revenue but the said records were not

made available to the petitioner. The petitioner was not

aware of the audit objections. Audit objections cannot be

a ground to reopen assessments as held in CIT versus

Simbhaoli Sugar Mills Limited, (2011) 333 ITR 470

(Del).

2. The first and the third contention for the sake of

convenience can be taken up together. The matter was heard

on 13th September, 2011 in the morning and then was taken up

and heard in the afternoon. Order dated 13th September, 2011

specifically records that the counsel for the respondent had

produced the requisite records. By an earlier order dated 18th

July, 2011, the Revenue was directed to produce the relevant

assessment records at the time of hearing. The records were

examined by the Court at the time of hearing and were retained

for examination and consideration to decide the writ petition. At

the time of hearing on 13th September, 2011, the petitioner did

not pray and ask that the records should be shown to them.

3. Two contentions were raised by the petitioner at the time

of hearing on 13th September, 2011. Firstly, that it is a case of

change of opinion and secondly, that the assessee had made

full and true disclosure of material facts and, therefore,

jurisdictional pre-conditions for initiation of reassessment

proceedings did not exist. Learned counsel had addressed

arguments on the said aspects. The decisions referred to and

relied upon in the judgment deal with the two aspects and

explain the legal position. It is not possible to accept the

contention of the petitioner that the courts cannot rely upon

judgments which are not cited but which are relevant to the legal

issues raised and which are required to be answered. Courts do

and can rely upon judgments which are not cited but are

relevant to the issue in controversy. It may be noted that in the

counter affidavit filed by the respondents, several decisions have

been relied upon, on change of opinion and failure or omission

to disclose fully and truly material facts necessary for

assessment. In fact, counsel for the petitioner had also not read

out or cited any judgment at the time of hearing, but these were

mentioned in the written submissions filed immediately after the

hearing. These judgments have been mentioned in paragraph 7

of the order dated 26th September, 2011. Scope of review is

circumscribed under Order XLVII, Rule 1 and the first and the

third contention, therefore, deserve to be rejected and cannot be

accepted. It may be, however, recorded that it is difficult to

believe and accept that the petitioner was not aware of the audit

objection as the same is available in the assessment records

and has not been treated and regarded by the Revenue as a

secret and confidential document.

4. By order dated 4th November, 2011, learned counsel for

the petitioner-applicant was asked to examine paragraphs 13,

15 and 16 of the decision dated 26th September, 2011 wherein

observations in Consolidated Photo and Finvest Limited

(supra) have been quoted and state whether the ratio or

quotations are contrary to the judgment of the Full Bench of this

Court and the Supreme Court in Kelvinator India Limited

(supra).

5. For the sake of convenience, the said paragraphs in the

decision dated 26th September, 2011 are quoted below:-

"13. Interpreting and highlighting the significance of the said explanation in

Consolidated Photo And Finvest Ltd. Vs. Assistant Commissioner of Income Tax, (2006) 281 ITR 394(Del) it has been held:-

"9. The above would show that cases falling in clause (c) of Explanation 2 in which income chargeable to tax has been underassessed or assessed at too low a rate or cases in which income has been made the subject of excessive relief under the Act or where excessive loss or depreciation allowance or any other allowance under the Act has been computed, would constitute cases of income escaping assessment. There is considerable authority for the proposition that the jurisdiction of the Assessing Officer to initiate proceedings would depend upon whether he has reasons to believe that any income chargeable to tax has escaped assessment. A long string of decisions rendered by the Supreme Court have emphasized that the belief of the Assessing Officer must be in good faith and must not be a mere pretence. The apex court has further held that there must be a nexus between the material before the Assessing Officer and the belief which he forms regarding the escapement of the assessee‟s income. A writ court, therefore, is entitled to examine whether the Assessing Officer‟s belief was in good faith and whether such reasons had a nexus with the action proposed to be taken."

14. XXXXX

15. Referring to the said explanation in Consolidated Photo and Finvest Ltd. (supra) it has been held:-

"8. It is clear from the above that the two critical aspects which need to be addressed in any action under section 147 are whether the Assessing Officer has "reason to believe" that any income chargeable to tax has escaped assessment and whether the proposed reassessment is within the period of limitation prescribed under the proviso to section 147. Explanation 1 to the said provision makes it clear that production of account books or other evidence from which the Assessing Officer could with due diligence discover material evidence would not necessarily amount to disclosure within the meaning of the proviso that stipulates an extended period of limitation for action in cases where the escapement arises out of the failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment.....

XXXX

14. In Kantamani Venkata Narayana and Sons v. First Addl. ITO [1967] 63 ITR 638, the apex court held that in proceedings under article 226 of the Constitution of India challenging the jurisdiction of the Income-tax Officer to issue a notice for reopening the assessment, the High Court was only concerned with examining whether the conditions which invested the Income- tax Officer with the powers to reopen the assessment existed. It is not, observed the court, within the province of the High Court to record a final decision about the failure to disclose

fully and truly all material facts bearing on the assessment and consequent escapement of income from assessment and tax. The court also held that from a mere production of the books of account, it could not be inferred that there had been full disclosure of the material facts necessary for the purposes of assessment. The terms of the Explanation, declared the court, were too plain to permit an argument that the duty of the assessee to disclose fully and truly all material facts would stand discharged when he produces the books of account or evidence which has a material bearing on the assessment. The court observed (page

644) : "It is the duty of the assessee to bring to the notice of the Incometax Officer particular items in the books of account or portions of documents which are relevant. Even if it be assumed that from the books produced, the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment."

15. To the same effect is the decision of the Supreme Court in Malegaon Electricity Co. P. Ltd. v. CIT [1970] 78 ITR 466 where the court observed (page

471) :

"It is true that if the Income-tax Officer had made some investigation, particularly if he had looked into the previous assessment records, he would have been able to find out what

the written down value of the assets sold was and consequently he would have been able to find out the price in excess of their written down value realised by the assessee. It can be said that the Income-tax Officer if he had been diligent could have got all the necessary information from his records. But that is not the same thing as saying that the assessee had placed before the Income-tax Officer truly and fully all material facts necessary for the purpose of assessment. The law casts a duty on the assessee to „disclose fully and truly all material facts necessary for his assessment for that year‟."

16. It has been further observed in Consolidated Photo and Finvest Ltd. (supra) :-

"19. ...The argument that the proposed reopening of assessment was based only upon a change of opinion has not impressed us. The assessment order did not admittedly address itself to the question which the Assessing Officer proposes to examine in the course of reassessment proceedings. The submission of Mr. Vohra that even when the order of assessment did not record any explicit opinion on the aspects now sought to be examined, it must be presumed that those aspects were present to the mind of the Assessing Officer and had been held in favour of the assessee is too far-fetched a

proposition to merit acceptance.

There may indeed be a presumption that the assessment proceedings have been regularly conducted, but there can be no presumption that even when the order of assessment is silent, all possible angles and aspects of a controversy had been examined and determined by the Assessing Officer...."

6. There cannot be any doubt about paragraph 13 and the

quote therein. The principle or the ratio laid down is a correct

and the right principle and not a rule, which has been dissented

or disapproved in Kelvinator India Limited (supra). In

paragraphs 15 and 16 of the decision in Consolidated Photo

and Finvest Limited (supra) reference is made to two decisions

of the Supreme Court in Kantamani Venkata Narayana and

Sons versus First Additional ITO, (1967) 63 ITR 638 and

Malegaon Electric Company Private Limited versus CIT,

(1970) 78 ITR 466 and the ratio and the findings recorded by the

Supreme Court in the two decisions. It cannot be said that the

ratio and the observations in aforesaid paragraphs of

Consolidated Photo and Finvest Limited (supra) are at

variance or do not lay down the law or ratio which is contrary to

the decision in the case of Kelvinator India Limited (supra).

Realizing this, Mr. Mehta, learned counsel for the petitioner-

applicant did not press his submissions on these paragraphs.

7. Learned counsel for the petitioner-applicant made

grievance with regard to paragraph 16 and submitted that the

observations in Consolidated Photo and Finvest Limited

(supra) are too broad and wide. Counsel for the Revenue has

submitted that special leave was granted against the decision in

Consolidated Photo and Finvest Limited (supra) but the civil

appeal has been dismissed. We need not examine the said

aspect because we are convinced that in the present case what

has weighed with the Court is the factual findings recorded in the

paragraphs 8 and 9, which read as under:-

"8. We have examined the original records of the case which have been produced before us. Reassessment proceedings have been initiated after examining and considering the audit note. The note records that the auditor‟s scrutiny revealed that the Assessing Officer had asked the assessee to furnish complete details/confirmations in respect of the sundry creditors amounting to Rs. 1,66,37,402/-. Out of the said amount, the assessee could submit confirmations in respect of the creditors amounting to Rs.1,13,53,344/- and the balance amount of Rs.52,84,058/- remained unconfirmed. The Assessing Officer in the original assessment order has held that the provisions of Section 41(1) were attracted as liability had remained unpaid and the assessee had failed to explain nexus of these expenses with its business activities. But unconfirmed

creditors amounting to Rs. 19,86,551/- only were added back, in spite of total unconfirmed creditors of Rs.52,84,058/-. This had resulted in under assessment of Rs.32,97,057/-.

9. In this regard, we may notice the questionnaire/notice dated 14th September, 2005, which was issued by the Assessing Officer at the time of original assessment proceedings. The petitioner was asked to submit list of sundry creditors with their names and addresses, opening and closing balance amount wise. Thereafter, by another notice dated 14th October, 2005, the petitioner was asked to furnish names and addresses of the sundry creditors of Rs.1.66 crores explaining each creditor and give details since when the amount was outstanding. What is available on record and what was submitted by the assessee- petitioner as per the reassessment notice, were details or confirmations to the extent of Rs.1,13,53,344/-. No other details and particulars were available. This was noticed in the audit objection/note. Inspite of this, an addition of Rs.19,86,551/- was made in the original assessment order under Section 41(1) of the Act, but there is no explanation why no addition was made in respect of Rs.32,97,507/-."

8. The facts of the case are very peculiar and unusual. The

Assessing Officer in the original assessment proceedings had

asked the petitioner to furnish complete details/confirmations in

respect of sundry creditors amounting to Rs.1,66,37,402/-. The

petitioner had submitted confirmations in respect of creditors

amounting to Rs.1,13,53,344/- and the balance amount of

Rs.52,84,058/- remained unconfirmed. The Assessing Officer in

the original assessment order, which has been quoted in

paragraph 2 of the decision dated 26th September, 2011, made

an addition of Rs.19,86,551/- under Section 41(1) but not in

respect of other unconfirmed creditors of Rs.32,97,507/-. This

was a factual lapse, which was pointed out in the audit objection