Allahabad High Court
M/S Dhampur Sugar Mills Ltd. vs Asstt. Commissioner Of Income-Tax,And ... on 9 September, 2010
Author: Rajes Kumar
Bench: Rajes Kumar, Bharati Sapru
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Writ Petition No. 2991 (Tax) of 2002 M/s Dhampur Sugar Mills Ltd. Dhampur, District Bijnor.................................Petitioner. Vs. Assistant Commissioner of Income-Tax, Najibabad, District Bijnor & Others.....Respondents. Hon'ble Rajes Kumar, J.
Hon'ble Bharati Sapru, J.
(Delivered by Hon'ble Rajes Kumar, J.) In the present writ petition, the petitioner is seeking the following reliefs:
(a) "issue a writ, order or direction in the nature of certiorari quashing the notice dated 5.3.2002 (Annexure-6) issued by the Assistant Commissioner of Income-Tax, Najibabad, District Bijnor, respondent no. 1.
(b) issue a writ, order or direction in the nature of certiorari quashing the notice dated 27.9.2002 (Annexure-14) issued by the Assistant Commissioner of Income-Tax, Najibabad, District Bijnor, respondent no. 1.
(c) issue a writ, order or direction in the nature of prohibition restraining respondent no. 1 from proceeding with reassessment proceeding under Section 148 of the Income-Tax Act for the assessment year 1995-96.
(d) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(e) award cost to the petitioner."
The brief facts of the case giving rise to the present writ petition are that the petitioner is a Company incorporated under the Companies Act, 1956 and carried on the business of manufacture and sales of Sugar and Chemical, etc. The petitioner had two Sugar Units in the State of U.P. The first Sugar Unit was situated at Dhampur, District Bijnor and other Unit was situated at Rouzagaon, District Barabanki.
For the assessment year 1995-96, the petitioner filed return on 30.11.1995 disclosing a loss of Rs. 20,61,04,870/-, which included the loss suffered in the assessment year 1995-96 to the extent of Rs.69,80,314/-. Initially the return of the petitioner was processed under Section 143 (1) (a) of the Income-Tax Act (hereinafter referred to as the "Act"). Subsequently, the case of the petitioner was selected for scrutiny and a notice under Section 143 (2) of the Act was issued and the assessment under Section 143 (3) of the Act had been completed on 3.3.1998. The Assessing Authority made an addition of Rs. 6,51,75,548/- (Rs.4,22,93,200/- for Dhampur Unit and Rs.2,28,82,348/- for Rouzagaon Unit) on account of under valuation of closing stock.
Being aggrieved by the assessment order, the petitioner filed appeal before the Commissioner of Income-Tax (Appeals) (in short CIT (Appeals). The CIT (Appeals) vide order dated 1.2.1999 allowed the appeal in so far as addition was made on account of valuation of closing stock and deleted the addition. Later on, respondent no. 1 has issued a notice dated 5.3.2002 under Section 148 read with Section 147 of the Act to reopen the assessment for the assessment year 1995-96. The petitioner sought the reasons on the basis of which notice has been issued. Respondent no. 1, vide letter dated 26.7.2002 supplied the reasons. The reasons for the issuing the notice are reproduced herein below:
"Office of the Assistant Commissioner of Income-Tax, Najibabad F. N0. D-10 The 26th July, 2002 To, MS Dhampur Sugar Mills Ltd.
Khampur.
Sub- Reassessment proceeding U/s 147 of the I.T. Act 1961 AY 95-96 Reasons regarding.
With reference to your letter dated 15-03-02 on the subject stated above, the reasons recorded for assessment are being supplied here under:-
1- Perused of P & L A/c reveals that you have debited a sum of Rs.7,50,24,520/- on account of excise duty has not been taken into consideration while valuing the closing stock. There was an increase of Rs.1,91,838 Qhs in closing stock, so, at the prevailing rate of excise duty i.e. @ Rs. 85/- quintals, value of closing stock should have been increased by Rs.1,63,06,230/-.
2- The details of interest transferees that in same case flat rate of interest has been applied, while in some other case product basis, has been applied, resulting in short computation.
(i)M.S U.P. Stand & Agro Products Ltd. Agwanpori Rs.8.49 lacs
(ii)VLS Finance Ltd. New Delhi Rs.15.41
(iii)Kotak Mahindra Finance, Bombay Rs.7.15
Total [Rs. 31.05]
Further as per schedule '8' of balance sheet, Rs. 11.5 lacs interest receivable and Rs. 5 lacs interest recoverable were to be included in taxable income.
The above amounts have escaped amount.
S/d 26-7-2002"
Heard Sri R.R. Agrawal, learned counsel for the petitioner and Sri Shambhu Chopra, learned Standing Counsel.
Learned counsel for the petitioner submitted that notice under Section 148 read with Section 147 of the Act has been admittedly issued on 5.3.2002 beyond the period of four years. For the assessment year 1995-96, the period of four years expired on 31.3.2000 while it was issued on 5.3.2002. He submitted that the proceeding under Section 147 of the Act can only be taken beyond the period of four years in case where there is failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, for that assessment year. He submitted that the petitioner has disclosed fully and truly all material facts necessary for the assessment along with return and during the course of the assessment proceeding and on consideration of such materials, the assessment order under Section 143 (3) of the Act was passed. He submitted that in the reasons recorded, there is no whisper that the petitioner failed to disclose fully and truly all material facts necessary for the assessment and, therefore, the initiation of the proceeding is patently barred by limitation. He further submitted that so far as ground no. 1 is concerned, the petitioner has already furnished complete details relating to the valuation of closing stock for the Units Dhampur and Rouzagaon Sugar Mills vide letter dated 23.12.1997. He submitted that as per the accounting policy schedule 17 the excise duty has not been included in the stock as on 31.3.1995, inasmuch as the excise duty was payable at the time of removal of goods. He submitted that on a consideration of the complete details, which were available at the time of assessment proceeding, the Assessing Authority has enhanced the valuation of closing stock in the assessment order which has been deleted in appeal by the CIT (Appeals). Therefore, it is not open to the Assessing Authority to raise the issue relating to the valuation of closing stock and to reopen the proceeding on this ground. So far as second ground is concerned, it is stated that vide letter dated 15.9.1997 the petitioner has filed the details of the interest received and receivable during the course of the assessment proceeding and the reconciliation chart reveals that an amount of Rs. 11,49,978/- has already been charged to income tax. The interest was calculated on product basis. It was duly considered during the course of the assessment proceeding and in the assessment order and has been charged to tax. So far as ground no. 3 is concerned, it is submitted that the figure of Rupees 5 lac interest recoverable is taken by mistake as there is no such amount in the balance sheet as on 31.3.1995. He submitted that notice under Section 148 of the Act has been issued merely on the basis of the audit objection and merely on account of change of opinion and without any material of escaped assessment. In support of the contention that the proceeding is barred by limitation inasmuch as it has been initiated beyond the period of four years, he relied upon the decision of this Court in the case of Former v. Commissioner of Income-Tax and another, reported in 247 ITR-436, the decision of the Calcutta High Court in the case of (1) Simplex Concrete Piles (INDIA) Ltd. v. Deputy Commissioner of Income-Tax and others, reported in 262 ITR-605, the decision of the Rajasthan High Court in the case of Banswara Syntex Ltd. v. Assistant Commissioner of Income-Tax, reported in 272 ITR-154; a decision of the Bombay High Court in the case of Asteroids Trading and investments P. Ltd. v. Deputy Commissioner of Income-Tax, reported in (2009) 308 ITR-190 (Bom); the decision of the Allahabad High Court in the case of M/s. Universal Subscription Agency Pvt. Ltd., Kanpur v. Joint Commissioner of Income Tax, Kanpur, reported in [2007 UPTC 419]; the decision of the Bombay High Court in the case of 226 ITR-156 and the latest decision of this Court in Civil Misc. Writ Petition No. 1057 of 2006 Smt. Raj Rani Gulati, Kanpur Nagar Vs. Union of India and another, decided on 3.5.2010. On the issue that the proceeding under Section 148 read with Section 147 of the Act cannot be initiated on account of change of opinion, he relied upon the latest decision of the Supreme Court of India in the case of Commissioner of Income Tax Vs. (1) Kelvenator of India Ltd. (2010), reported in 320 ITR-561 (SC). He submitted that it is a settled principle of law that excise duty is not part of the closing stock. Reliance is placed on the decision of the Supreme Court of India in the case of Collector of Central Excise Vs. Polyset Corporation, reported in (2000) 10 SCC-241, the decision of Bombay High Court in the case of Caprihans India Ltd. v. Prakash Chandra and other, reported in 256 ITR-721 and the decision of Madras High Court in the case of Commissioner of Income Tax v. Parry Confectionary Ltd., reported in [2008] 299 ITR-321. He further submitted that the Assessing Authority had sought permission from the Joint Commissioner of Income Tax, Bijnor Range, Bijnor only on the first ground and no sanction had been sought on ground nos. 2 & 3.
Sri Shambhu Chopra, learned Standing Counsel submitted that Section 149 of the Act provides limitation for issue of notice. He submitted that the notice under Section 148 can be issued beyond the period of four years and within the period of six years in case if the escaped income exceeds rupees one lac or more for that year. In the present case, the escaped income admittedly exceeds more than rupees one lac, therefore, the notice issued even beyond the period of four years and within a period of six years in case where there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment is justified. Therefore, the notice issued on 5.3.2002 which was within the period of six years was within limitation. He submitted that there was sufficient material on record to show that there was escaped income and, therefore, the notice has been legally issued under Section 148 of the Act. He further submitted that mere production of books of account during the course of assessment proceeding does not amount to disclosure of all material facts in view of Explanation (1) to Section 147 of the Act. He placed reliance on the decision of the apex Court in the case of of Phool Chand Bajrang Lal and another v. Income-Tax Officer and another, reported in 2003-456 SC, the decision of the Punjab and Haryana High Court in the case of Grover Nursing Home v. Income-Tax Officer and others, reported in 248 ITR-493 and the decision in the case of Sri Krishna Pvt. Ltd., Etc. v. Income Tax Officer and others, reported in 221 ITR-538.
We have considered the rival submissions and gone through the records.
It would be useful to refer relevant provisions of the Act.
"Section 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, assessee 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 or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereinafter in this section and in sections 148 to 153 referred to as the relevant assessment years):
Provided that where an assessment under sub-section (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 reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:
Provided further that the Assessing Officer may assessee or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment.
Explanation 1. - Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso.
Explanation 2.-- For the purpose of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:-
(a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax;
(b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relied in the return;
(c) where an assessment has been made, but----
(i) income chargeable to tax has been underassessed; or
(ii) such income has been assessed at too low a rate; or
(iii) such income has been made the subject of excessive relief under this Act; or
(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.
Explanation 3. - For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148."
Issue of notice where income has escaped assessment.
Section 148 (1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139:) Provided that in a case---
(a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005 in response to a notice served under this section, and
(b) subsequently a notice has been served under sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to sub-section (2) of section 143, as it stood immediately before the amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice.
Provided further that in a case----
(a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and
(b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice.
[Explanation --- For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section.] [(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.] Time limit for notice.
Section 149. [(1) No notice under section 148 shall be issued for the relevant assessment year---
[(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b);
b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year.] Explanation - In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of Explanation 2 of section 147 shall apply as they apply for the purposes of that section.) (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151.
(3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of two years from the end of the relevant assessment year."
Admittedly, the notice under Section 148 issued on 5.3.2002 was beyond the period of four years. There is no whisper in the reason recorded that there was failure on the part of the assessee to disclose the material fact for the purposes of assessment. We have perused the assessment order which reveal that the petitioner had furnished the complete details of closing stock and on consideration of such details, the value of the closing stock was enhanced and an addition was made towards closing stock, which has been subsequently deleted in appeal. The issue relating to under valuation has been considered in the assessment order in paragraph-11. So far as ground no. 2 relating to interest is concerned, the Assessing Authority has considered in paragraph-23 of the assessment order in details. In paragraph-23, the Assessing Authority has assessed the interest and dividend income as income from other sources which included the interest received from inter corporate loans at Rs.1,07,39,953/-. The details of Rs.1, 73,00,000/- is Annexure-B to the balance sheet wherein under the head the "Details of interest" the interest received on inter corporate loans of Rs.1,07,39,953/- is shown. The details include the interest received for Rs.7,08,904/- and Rs.12,329/- from VLS Finance Limited, New Delhi on product basis, interest of Rs.8,01,279/- from M/s U.P. Straw Board Agro Product Limited on product basis, and a sum of Rs.9,18,357/- from M/s Kotak Mahindra Finance Limited, Bombay on product basis. Therefore, it cannot be said that the complete details of interest along with return and during the course of assessment proceeding were not filed. Such interest has also been considered in assessment order and has been assessed to tax. So far as third objection is concerned, namely, "as per schedule 8 of the balance sheet 11.5 lacs interest receivable and Rs.5,00,000/- interest recoverable were to be included in the taxable income" is concerned, as per the Assessing Authority own observation, such details had been obtained from the balance sheet which was furnished by the Assessing Authority. Moreover in para 23 of the writ petition, it is stated, that the figure of Rs.5,00,000/- towards interest recoverable, appears to have been mistakenly mentioned. There is no such amount for that head in the balance sheet as on 31.3.1995 of the petitioner. This paragraph has been replied by paragraph-12 of the counter affidavit filed by Shri Rama Kant Shukla, Income-Tax Inspector, wherein it is stated that the contents of paragraph-23 of the writ petition are not admitted as stated and it is submitted that the figure of Rs. 5,00,000/- has been inadvertently mentioned as interest receivable in letter dated dated 26.7.2002. This is actually "claims recoverable" amounting to Rs.27,35,365/-. In this view of the matter so far as ground no. 3 is concerned, the amount has been inadvertently mentioned. Therefore, it is not the case of failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment.
It is also pertinent to refer some paragraphs of the writ petition, which have not been specifically denied in the counter affidavit.
Para-23. "That regarding third objection, figure of Rs. 5 lacs of interest recoverable, it appears that they have mistakenly mentioned it as there is no such amount or head in the balance sheet as on 31.3.1995, of the petitioner.
Para-26. That the petitioner had disclosed the matter fully and truly at the time of regular assessment proceedings. It had also furnished the details regarding closing stock specifically asserting that no provision of Excise Duty/liability in respect of goods manufactured and held in stock as on 31.3.1995 was made and valuation of the closing stock of both the units were furnished.
Para-27. That the petitioner also furnished details of interest received in case of U.P. Staw Board and Agro Product Ltd., M/s V.L.S. Finance Ltd. and Kotek Mahindra Finance Ltd. and the list of interest charged showing the basis of charging interest, whereas at the time of proceeding it imposed interest on year end basis.
Para-28. That the third objection was also dealt with as per Schedule 8 of the Balance Sheet, which was furnished by the assessing authority. Thus, the petitioner had disclosed the matter fully and truly and the material facts necessary for assessment in course of the regular assessment proceeding under Section 143 (3) of the Income Tax Act. Therefore, Explanation I of the proviso to Section 147 of the Act is not applicable, and accordingly, issuance of notice under Section 148 of the Act is wholly illegal, without jurisdiction and liable to be quashed."
In view of the above, we are of the view that the present is not the case of failure on the part of the assessee to disclose the material facts. All the material facts relating to the valuation of closing stock and interest had been disclosed along with the return and during the course of the assessment proceeding which have been duly examined by the Assessing Authority while passing the assessment order. Further it is not the case of failure on the part of the assessee to make a return under Section 139, issued under sub-section (1) of Section 142 or Section 148.
The proviso to Section 147 clearly provides that where an assessment under sub-section (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 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 make a return under Section 139 issued under sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Therefore, in a case where the assessment has been made under Section 143 (3) of the Act, the limitation is only four years, unless the case falls under the exceptions mentioned in the proviso itself. No case has been made out that the case falls under the exception. In the reason recorded also there is no mention that there was a failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment and it could not be because, as stated above, the assessee has furnished complete details relating to valuation of closing stock and interest, which have been duly examined in details by the Assessing Authority in the assessment order. The Assessing Authority has made an addition on account of under valuation of stock, which has been deleted in the appeal on the ground that the assessee has followed the same method of valuing the stock, which had been followed in the earlier years. Moreover, the apex Court has held that excise duty is payable at the time of removal of goods and, therefore, the excise duty cannot be included in the closing stock.
We do not find any substance in the argument of learned Standing Counsel that where the escaped income exceeds rupees one lac the limitation to issue notice is six years under Section 149 of the Act, whether the case falls under the exception of the proviso to Section 147, or not.
In our view both Sections 147 and 149 of the Act are to be read together. The proviso to Section 147 of the Act specifically provides the limitation for taking action under the said Section within four years and only in the exceptional case mentioned therein, namely, where there is failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment for the assessment year, the proceeding can be initiated beyond the period of four years. Thus the proviso to Section 147 completely prohibits to take action beyond four years unless the case is covered under the exception mentioned in the proviso itself. Section 149 provides limitation for the issue of notice under Section 148. Section 149(1)(a) provide general limitation for issue of notice four years. Section 149 (1)(b) provides six years limitation for issue of notice in case escaped income exceeds one lac. Section 149 (1)(a) and (b) read with proviso to Section 147 of the Act clearly provides that where the case falls under the exception mentioned in the proviso to Section 147 of the Act the proceeding can be taken beyond the period of four years, but within six years if the escaped income exceeds rupees one lac and in for all other cases, the limitation for issue of notice remains four years meaning thereby that if the income chargeable the tax which has escaped assessment is less than rupees one lac, the limitation to issue notice under Section 148 of the Act is only four years even if case falls under the exception mentioned in proviso to Section 147 and six years limitation is applicable only in case where escaped income chargeable to tax exceeds rupees one lac and the case falls under exception, namely there is a failure on the part of the assessee to disclose fully and truly material fact. Therefore, where there is a case of failure to disclose fully and truly all material facts on the part of the assessee, the action can be taken beyond the period of four years but if the escaped income chargeable the tax is less than rupees one lac, the period of limitation for the issue of notice is only four years and where the escaped income exceeds rupees one lac the limitation to issue the notice under Section 148 is up to six years. The object fixing such limitation appears to be that where the escaped income is less than one lac, the tax incidence may be small the action under Section 147 should not be taken beyond the period of four years in any case.
Thus, on the plain reading of Section 147 and Section 149 legal position in respect of limitation emerges as follows:
(i)In view of proviso to Section 147 no action can be taken under Section 147 beyond the period of four years if there is no case of failure on the part of the assessee to disclose fully and truly all material facts which are necessary for assessment for the year of assessment.
(ii)If the case falls under the exception mentioned in the proviso to Section 147, namely there is failure on the part of the assessee to disclose fully and truly all material facts which are necessary for assessment for the year of assessment then action can be taken beyond four years subject to the issue of notice under Section 148 within the period of limitation provided under Section 149 of the Act.
(iii)Where case falls under the exception to proviso to Section 147 and escaped income exceed rupees one lac the notice under Section 148 can be issued beyond the period of 4 years but within 6 years under Section 149 (1) (b).
(iv) In case when the escaped income is less than rupees one lac the limitation to issue the notice under Section 148 is only four years, even if, the case falls under the exception of proviso to Section 147.
It may be mentioned here that our above view is supported by the decision of the Bombay High Court in the case of Anil Radhakrishna Wani Vs. Income-tax Officer and others, reported in (2010) 323 ITR, 564 (Bom), in the case of Multiscreen Media P. Ltd. Vs. Union of India and another (No.1), reported in (2010) 324 ITR 48 (Bom), in the case of IPCA Laboratories Ltd. Vs. Gajanand Meena, Deputy Commissioner of Income-Tax and others (No.2), reported in (2001) 251 ITR, 416, and in the case of Supreme Treves Pvt. Ltd. Vs. Deputy Commissioner of Income-Tax and others, reported in (2010) 323 ITR, 323 (Bom) and the decision of the Gujrat High Court in the case of Arvind Mills Ltd. Vs. Deputy Commissioner of Income-Tax (Assessment), reported in (2000) 242 ITR, 173, in the case of Gujarat Fluorochemicals Ltd. Vs. Deputy Commissioner of Income-tax, reported in (2009) 319 ITR, 282 (Guj.) and in the case of Inducto Ispat Alloys Limited Vs. Assistant Commissioner of Income-Tax (OSD), reported in (2010) 320 ITR, 458 (Guj).
In view of the above, we are of the view that the impugned notice issued under Section 148 of the Act is barred by limitation being issued beyond the period of limitation inasmuch as no case of failure on the part of the assessee to disclose fully and truly material fact necessary for assessment for the assessment year is made out.
In view of above, it is not necessary to deal with the other submissions of learned counsel for the petitioner.
In the result, the writ petition is allowed and notice dated 5.3.2002 issued under Section 148 of the Act for the assessment year 1995-96 is hereby quashed.
Dated: 9th September, 2010 OP