SCA/6764/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 6764 OF 1999 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE D.A.MEHTA AND HONOURABLE MR.JUSTICE H.B.ANTANI ================================================= ====================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? NO 2 To be referred to the Reporter or not? NO 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ================================================= ====================== PREHLADBHAI NARANBHAI PATEL - PETITIONER VERSUS N.K.C NAIR - RESPONDENT ================================================= ======================APPEARANCE : MR S N DIVATIA FOR THE PETITIONER. MRS M M BHATT FOR THE RESPONDENT. ================================================= ====================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA AND HONOURABLE MR.JUSTICE H.B.ANTANI DATE : 02/07/2008 ORAL JUDGMENT SCA/6764/1999 2/8 JUDGMENT (PER : HONOURABLE MR.JUSTICE D.A.MEHTA) 1. This petition challenges notice dated 17-03-1999 issued by the respondent under Section 148 of the Income Tax Act, 1961 (“the Act”) for Assessment Year 1992-93. The challenge is primarily on the ground that as the impugned notice has been issued beyond a period of 4 years from the end of the relevant Assessment Year, the burden is on the Revenue to establish that any one of the conditions stipulated by the proviso to Section 147 of the Act stands fulfilled so as to vest the respondent-authority with jurisdiction, but the respondent-authority has failed to establish the jurisdictional facts. 2. The facts which are not in dispute are that on 23-10- 1992, a return of income declaring loss of Rs. 9,17,411/- was filed by the petitioner in relation to the proprietary business carried on in the name of Shyam Traders. The assessment came to be framed under Section 143 (3) of the Act on 31-01- 1995 assessing the loss at Rs. 8,41,205/-. The impugned notice dated 17-03-1999 has been issued after recording reasons which read as under: “Regarding : Shri Prahladbhai Naranbhai Patel Status : Individual Assessment Year : 1992-93 Reason for reopening assessment u/s. 148 In this case the assessee has filed the return of income showing total loss of Rs. 9,17,410/-. The total loss was assessed at Rs. 8,41,205/- u/s. 143 (3). In the return of SCA/6764/1999 3/8 JUDGMENT income, the assessee has reduced the stock of cotton by 325 quintals by claiming that it has burnt due to fire. On verification of the records, it appears that the assessee did not shown the income of Rs. 3,22,160/- being the Insurance claim accepted by the Insurance Corporation. Since the assessee has maintained books of account on mercantile basis during the year, the fire claim of Rs. 3,22,160/- accepted by the Insurance Co. should be shown as income by the assessee. However, the assessee failed to do so. I, therefore, reason to believe that income of Rs. 3,22,160/- has escaped assessment. Ahmedabad, Dt.23.2.1999 (N.K.C.NAIR) Income-tax Officer, Ward- 3(6) Ahmedabad.” 3. The learned Advocate for the petitioner has assailed impugned notice by stating that there was no failure on the part of the petitioner to disclose truly and fully all material facts necessary for the assessment of the relevant Assessment Year. That the remaining two conditions regarding non filing of return and not responding to statutory notice are not applicable in the facts of the case. It was submitted that along with the return of income, the petitioner had placed a note which reads as under: “Notes:- There was a fire in the business premises of Ambica Vijay Cotton Ginning & Pressing Factory on 25-4-91. At that time, 200 bales of cotton belonging to me were burnt away. I had insurance policies to the extent of Rs. 8 lacs with New India Insurance Company. I had put up a claim along with other dealers. As the claim was not settled with the Company, a complaint was made under the Consumers Protection Act. Thereafter, a regular complaint has been filed at No. 66/92. The Company has replied on 17-7-92. The company has not made any settlement so far. As nothing is received so far, the value of burnt bales of cotton has been claimed as loss. When the compensation is settled, and received form the Insurance SCA/6764/1999 4/8 JUDGMENT Company, the same shall be offered as income of the year of receipt.” The return of income was accompanied by Tax Audit Report in Form No. 3 (CB) as required by the provisions of Section 44 AB of the Act. Note No. 10 of the Tax Audit Report dated 10-10- 1992 gave complete details as to the destruction of 200 bales by virtue of fire which took place on 25-04-1991. The said note reads as under: “No. 10 As per explanation given by assessee, 200 cotton bales i.e. 325 quintal were burnt due to fire took place on 25.4.91 in the premises of Ambica Vijay Cotton Ginning and Pressing Factorly, Dholka were the goods of assessee were lying. The Insurance claim has been made with Insurance Co. The said claim is not settled even after lapsed of more than fifteen months. It is further explained by the assessee that when the compensation i.e. fire claim will be received from the Insurance Co. The same will be credited in the books of accounts and will be offered to tax in that year.” It was, therefore, submitted that in absence of any omission on part of the petitioner, the impugned notice was bad in law and be declared to be so. 4. On behalf of the respondent-authority, it was emphatically pointed out that as recorded in the reasons for re- opening, the respondent-authority had come into possession of information pointed out by the internal audit that a sum of Rs. 3,22,160/- was the amount of insurance claim accepted by the Insurance Company. The petitioner-assessee had failed to show the said amount as income despite the fact that the petitioner maintained books of account on mercantile system of accounting. Therefore, the impugned notice was rightly SCA/6764/1999 5/8 JUDGMENT issued by the respondent-authority. In support of the submissions, reliance was placed on order dated 20-10-1993 made by Consumer Disputes Redressal Commission in Complaint No. 66 of 1992, with special reference to the report of the Surveyor, one Shri U. R. Shah of the Insurance Company wherein the Surveyor has assessed the value of the damaged bales after deducing the salvage and adding the fire-fighting costs and resorting to exclusion clause, and held the entitlement of the complainant i.e. the petitioner at Rs. 3,22,160/-. It was, therefore, contended that at least to this extent, the petitioner was required to disclose the said amount as income liable to tax for the year under consideration. 5. The facts noted hereinbefore go to show that the petitioner had unequivocally pointed out the factum of fire, the fact of petitioner having made claim before the Insurance Company, and the fact that the claim was not settled till the point of time of filing of return. In fact, the petitioner had categorically stated in the note placed along with the return of income and the auditors had recorded in the text / report that when the claim is settled and received from the Insurance Company, the same shall be offered as income in the year of receipt. When one reads the reasons recorded, it is apparent that the assessment made by the Surveyor of the Insurance Company has been treated by the respondent-authority as the income accruing to the petitioner. 6. However, the order of the Consumer Disputes Redressal Commission on which reliance has been placed for recording of reasons cannot carry the case of Revenue any further. Firstly, the said order is dated 20-10-1993 while the SCA/6764/1999 6/8 JUDGMENT relevant Previous Year in case of the petitioner had ended on 31-03-1992. Therefore, even without going further, the said order cannot be treated as a basis for forming an opinion that some income had escaped assessment. Such an opinion could not have been formed for the relevant Assessment Year, namely, Assessment Year 1992-93 considering the fact that the order of the Commission was not in existence during the relevant accounting period i.e. 01-04-1991 to 31-03-1992. Secondly, even if the said order is read, it is apparent that the Commission itself has recorded, after recording the assessment made by the Surveyor of the Insurance Company, “The complainant did not accept the assessment.” This is a statement of fact recorded by the Commission. The respondent-authority could not have, therefore, even prima facie formed an opinion that such an amount had accrued as income in the hands of the petitioner-assessee merely because the Surveyor of the Insurance Company had worked out some figure. In fact, the order itself records that the Insurance Company has been directed to make payment of sum of Rs. 7,84,862/- along with 12% interest as against the claim of sum of Rs. 8,00,000/-. 7. In fact, the petitioner has placed on record communication dated 15-10-1999, “Annexure-F”, issued by the New India Assurance Company Limited and addressed to the petitioner wherein it is specifically stated: “Sub:-Claim Status Certificate for Fire Claim No:91/11/014 & 015 Date of Fire-25-04-91 for the stock of Cotton covered under Policy No:11 21002 04965 & 11 212002 05027. ------------------------------------------------------------------------- ------ SCA/6764/1999 7/8 JUDGMENT Dear Sir, This has reference to your letter of even date, regarding the above subject; We have to inform you that above claims are till pending as per our branch office record. Further to this you have claimed for Rs. 4,00,000/- + Rs. 4,00,000/- = Rs. 8,00,000/-. Your claims files which are under dispute, are lying with our higher authority for the further negatation with National Faroum. For the latest status information you may contact our Regional Office, at Ahmedabad. BRANCH MANAGER.” Thus, it is clear that despite the order made by the Commission in 1993, as late as 15-10-1999, the Insurance Company had not accepted the claim of the petitioner and the matter was pending before the higher authorities. There was, therefore, no question of treating any part of the claim as income which could be stated to have accrued during the relevant Previous Year relevant to the Assessment Year 1992- 93. 8. In the aforesaid set of facts and circumstances of the case, it is not possible to state that there was any omission to fully and truly disclose all material facts relevant for the assessment of the Assessment Year in question. In absence of any failure on the part of the petitioner, the impugned notice dated 17-03-1999 issued under Section 148 of the Act for Assessment Year 1992-93 could not have been issued beyond a period of 4 years from the end of the relevant Assessment Year. Accordingly, the impugned notice is quashed and set aside. 9. The petition is allowed accordingly. Rule made SCA/6764/1999 8/8 JUDGMENT absolute. There shall be no order as to costs. [D. A. MEHTA, J.] [H. B. ANTANI, J.] /shamnath