Case: Yash Raj Films Private Limited Vs. Assistant Commissioner of Income-Tax &amp; Others

again sought to reopen the assessment for the assessment year 2004-2005 by recording reasons as follows :-The assessee company is engaged in the business of production and distribution of films. The return of the A.Y.2004-05 was filed on 31/10/2004 declaring total income of Rs.4,57,64,160/-. The assessment was completed u/s 143(3) on 19/12/2006 determining total income at Rs. 473,63,940/-.Subsequently it was noticed that the assessee company has debited an amount of Rs.95,41,541/- in P & L A/c .(Schedule 14 Administrative Expenses) as bad debt written of. As per Assessees letter dated 13/11/2006 ,the details of bad debts written of is Rs.94,41,540/- and the major parties are "Aum Creaters Unlimited" for Rs.86,94,516/-and "Raam Raj Kalamandir" for Rs. 500,000/-.The amount due from Amu Creaters Unlimited of Rs.85,94,516/-relates to advances paid and expenses incurred by the assessee in the F.Y.2002-03 .The amount due from Raam Raj Kalamandir of Rs.500,000/- also relates to advance paid to the party. It is noticed that the advances so paid to the above parties by the assessee have not been shown as income and the nature of business of the assessee is not money lending. The said expenses incurred by the assessee in the earlier year on behalf of the above parties are also not shown as income in the P & L A./c.As per section 36(1)(vii) of the I.T.Act Amount of any debt or part thereof is allowable as deduction subject to the debt has been taken into account in computing the income of the assessee of the previous year or of an earlier previous years, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee.The assessee company has deliberately concealed the fact that Rs.94,41,540/-was never offered as an income. In this case provisions to section 147 is clearly applicable as there was failure on the part of the assessee company to declare fully and truly all material facts necessary for its assessment for the A.Y.2004-05.In view of the above reason, income chargeable to tax of Rs.95,41,540/- has escaped assessment for A.Y.2004-05 within the meaning of section 147. The assessees case is covered within the meaning of Section 149(1)(b) of the I.T.Act ,1961 as the concealed income exceeds Rs.1,00,000/-.7. On perusal of the reasons recorded it is seen that the assessment for the assessment year 2004-2005 is sought to be reopened mainly on the ground that as per section 36(1)(vii) of the I.T.Act amount of any debt or part thereof which has become irrecoverable can be allowed provided the debt has been taken into account in computing the income of the assessee of that previous year or of an earlier previous year, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In the present case during the assessment proceedings the assessing officer enquired the very same issue and on being satisfied allowed the claim. Thereafter notice under section 148 of the Act was issued on 23/3/2009 within four years from the end of the relevant assessment year and again on receiving explanation from the assessee, no further action was taken on the notice dated 23/3/20098. Once again, by the impugned notice dated 22/3/2010 the assessment is sought to be reopened on the very same grounds after the expiry four years from the end of the relevant assessment year.9. As per the proviso to section 147 of the Income Tax Act, 1961 assessment beyond four years from the end of the relevant assessment year can be reopened only if there is failure on the part of the assessee to disclose fully and truly the material facts. In the present case admittedly the question regarding availability of Rs.94 lacs as bad debt was specifically raised in the original assessment proceedings and on receiving explanation from the assessee the claim of the assessee was allowed. In these circumstances it cannot be said that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose of assessment.10. Reliance is placed by the counsel for the Revenue on the decision of this Court in the case of Dr. Amins Pathology Laboratory Vs. P.N.Prasad, Joint Commissioner of Income Tax and others (No.1), 252 ITR 673 (Bom.) In that case it was held that mere production of balance sheet or account books would not amount to disclosure of material facts necessary for assessment . As noted earlier in the present case the very specific issue regarding allowability of the bad debt was raised during the course of assessment proceedings and only after being satisfied the Assessment Officer allowed the claim of the assessee. Therefore, the decision of this Court in the case of Dr.Amin Pathology Laboratory has no relevance in the facts and circumstances of this case.11. Similarly reliance is placed by the counsel for the Revenue on the decisions in the case of Smt.Nilofer Hameed And Another Vs.Income Tax Officer, 235 ITR 161 (Kerala) and Sukhlal Ice and Cold Storage Company V. Income Tax Officer and Another 1993 ITR 129 (Allahabad High Court). These rulings have no relevance to the facts and circumstances of the present case.In both the aforesaid cases, since the first notice issued for reopening of the assessment was held to be invalid, the second notice issued was held to be valid. In the present case, the notice is invalid not because it is the second notice, but because, there was no failure to disclose fully and truly all material facts. Therefore, both the aforesaid decisions relied upon by the counsel for the revenue have no relevance to the facts of the present case.12. Once it is held that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, the impugned notice issued beyond the period of four years from the end of the relevant assessment year cannot be sustained .

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. On perusal of the reasons recorded it is seen that the assessment for the assessment yearis sought to be reopened mainly on the ground that as per section 36(1)(vii) of the I.T.Act amount of any debt or part thereof which has become irrecoverable can be allowed provided the debt has been taken into account in computing the income of the assessee of that previous year or of an earlier previous year, or represents money lent in the ordinary course of business of banking or money lending which is carried on by the assessee. In the present case during the assessment proceedings the assessing officer enquired the very same issue and on being satisfied allowed the claim. Thereafter notice under section 148 of the Act was issued on 23/3/2009 within four years from the end of the relevant assessment year and again on receiving explanation from the assessee, no further action was taken on the notice datedAs per the proviso to section 147 of the Income Tax Act, 1961 assessment beyond four years from the end of the relevant assessment year can be reopened only if there is failure on the part of the assessee to disclose fully and truly the material facts. In the present case admittedly the question regarding availability of Rs.94 lacs as bad debt was specifically raised in the original assessment proceedings and on receiving explanation from the assessee the claim of the assessee was allowed. In these circumstances it cannot be said that there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for the purpose ofnoted earlier in the present case the very specific issue regarding allowability of the bad debt was raised during the course of assessment proceedings and only after being satisfied the Assessment Officer allowed the claim of the assessee. Therefore, the decision of this Court in the case of Dr.Amin Pathology Laboratory has no relevance in the facts and circumstances of this case.11. Similarly reliance is placed by the counsel for the Revenue on the decisions in the case of Smt.Nilofer Hameed And Another Vs.Income Tax Officer, 235 ITR 161 (Kerala) and Sukhlal Ice and Cold Storage Company V. Income Tax Officer and Another 1993 ITR 129 (Allahabad High Court). These rulings have no relevance to the facts and circumstances of the present case.In both the aforesaid cases, since the first notice issued for reopening of the assessment was held to be invalid, the second notice issued was held to be valid. In the present case, the notice is invalid not because it is the second notice, but because, there was no failure to disclose fully and truly all material facts. Therefore, both the aforesaid decisions relied upon by the counsel for the revenue have no relevance to the facts of the present case.12. Once it is held that there was no failure on the part of the assessee to disclose fully and truly all material facts necessary for the purpose of assessment, the impugned notice issued beyond the period of four years from the end of the relevant assessment year cannot be sustained .