DCIT, New Delhi V. M/s Dixon Technologies (India) Ltd., New Delhi

ITA 1303/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96968 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-07-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 06-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Bad and doubtful debts; Reason to believe
• Section: 143(3); 147; 148; 139

Judgement Text

ITA NO.1303/DEL/2013 ASSTT.YEAR: 2003-04 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `B NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.1303/DEL/2013 ASSESSMENT YEAR : 2003-04 DCIT, VS DIXON TECHNOLOGIES (INDIA) LTD., CIRCLE 10(1), FLAT NO. 5, 1 ST FLOOR, SECTOR-6 MARKET, NEW DELHI. R.K. PURAM, NEW DELHI. (PAN: AAACD3641D) (APPELLANT) (RESPONDENT) APPELLANT B Y: SMT. PARWINDER KAUR, SR. DR RESPONDENT BY : MS DEBASH REE RAO O R D E R PER CHANDRAMOHAN GARG, J.M. THIS APPEAL BY THE REVENUE HAS BEEN DIRECTED AGAINS T THE ORDER OF CIT(A)- V, NEW DELHI DATED 19.12.2012 IN APPEAL NO. 112/11- 12 FOR AY 2003-04. THE SOLE GROUND RAISED BY THE REVENUE IN THIS APPEAL RE ADS AS UNDER:- 1. WHETHER THE CIT(A) UNDER THE FACTS AND CIRCUMST ANCES OF THE CASE AND IN LAW WAS JUSTIFIED IN QUASHING THE R EOPENING OF THE ASSESSMENT U/ S 147 OF THE INCOME TAX ACT,1961 WHEN JURISDICTIONAL HIGH COURT IN THE CASE OF BAWA ABHAI SINGH VS. CIT9117 TAXMAN 12) AND RAKESH AGGARWAL VS ACIT(87 T AXMAN 306) HAS ALSO HELD THAT UNDER THE AMENDED PROVISION S OF SECTION 147 THE POWER TO REOPEN IS MUCH WIDER AND CAN BE EX ERCISED EVEN AFTER THE ASSESSEE HAS DISCLOSED FULLY AND TRU LY ALL MATERIAL FACTS? 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE A ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 2 PRIVATE LIMITED COMPANY IS ENGAGED, INTER ALIA, IN THE BUSINESS OF MANUFACTURING AND MARKETING OF AUDIO-VIDEO ELECTRONIC EQUIPMENTS AND SUB-ASSEMBLIES THEREOF AND OTHER ELECTRONIC ITEMS. THE ASSESSEE COMPANY HA D FILED ITS ORIGINAL RETURN OF INCOME ON 17.11.2003 DECLARING INCOME OF RS.1,89,51 ,020/-. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT, VIDE ORDER DATED 06.03.2006. SUBSEQUENTLY REAS SESSMENT PROCEEDINGS UNDER SECTION 147/148 OF THE ACT WERE INITIATED VIDE NOTI CE DATED 04.09.2009 RECORDING THE REASONS AS: 'THE ASSESSMENT OF THE COMPANY M/S DIXON UTILITIES AND EXPORTS (P) LTD. FOR THE A. Y. 2003-04 ON 06.03.200 6 AT RS. 1,96,57,890/=. IT HAS BEEN NOTICED THAT THE AMOUNT OF RS.23.43 LAKHS WERE WRONGLY CLAIMED BY THE ASSESSEE BEING TH E AMOUNT WRITTEN OFF WHICH PERTAINS TO THE DEVELOPMENT OF SO FTWARE AND FORFEITURE OF REGISTRATION CHARGES OF INDUSTRIAL LA ND. THE AMOUNTS WHICH WERE CLAIMED TO BE WRITTEN OFF IN P&L A/C WER E CAPITAL IN NATURE AND EITHER THE ASSESSEE SHOULD NOT CLAIMED T HE SAME IN P&L ACCOUNT OR THEY MUST HAVE BEEN SUO MOTO DISALLO WED BY THE ASSESSEE COMPANY AND HAVE BEEN ADDED BACK INTO THE COMPUTATION OF INCOME. THE ASSESSEE FAILED TO DISCH ARGE HIS DUTIES BY NOT ADDING BACK THE SAME INTO HIS COMPUTA TION OF INCOME AS PER THE IT ACT. THUS THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSES SMENT AND TO REASSESS SUCH INCOME CHARGEABLE TO TAX WHICH HAS COME TO NOTICE NOW AND WAS OF THE FAILURE ON THE PART OF TH E ASSESSEE BY NOT ADDING BACK THE SAME INTO THE COMPUTATION OF IN COME ALONG WITH RETURN FILED BY HIM AND THE ASSESSEE COMPANY F AILS TO DISCLOSE FULLY AND TRULY THE ABOVE MATERIAL FACTS N ECESSARY FOR THE ASSESSMENT. I HAVE THEREFORE, REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE A. Y. 2003-04. ISSUED NOTICE U/S 148. ' ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 3 3. THE ASSESSEE OBJECTED TO THE REOPENING OF ASSESS MENT BUT THE AO DISMISSED THE OBJECTION OF THE ASSESSEE AND FINALIS ED THE REASSESSMENT ORDER U/S 143(3) /148 OF THE ACT ON 19.11.2010 BY MAKING A SO LE DISALLOWANCE OF AMOUNT WRITTEN OFF TREATING THE SAME AS CAPITAL EXPENDITUR E AMOUNTING TO RS.23,43,179/-. BEING AGGRIEVED BY THE ABOVE REASSESSMENT ORDER, TH E ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHICH WAS ALLOWED ON LEGAL GROUNDS. NOW, THE AGGRIEVED REVENUE IS BEFORE THIS TRIBUNAL IN THIS S ECOND APPEAL WITH THE SOLE LEGAL GROUND AS REPRODUCED HEREINABOVE. LD. DR PLA CING RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THE C ASE OF DALMIA PVT. LTD. VS CIT DELHI DATED 26.9.2011 PASSED IN WP (CIVIL) NO. 6205 OF 2010 AND SUBMITTED THAT THE TERM FAILURE ON THE PART OF THE ASSESSEE IS NOT RESTRICTED ONLY TO THE INCOME TAX RETURN AND THE CO LUMNS OF THE INCOME TAX RETURN OR THE TAX AUDIT REPORT. LD. DR FURTHER SUBMITTED THAT THE SAID EXPRESSION IN FIRST PROVISO TO SECTION 147 OF THE ACT I.E. FAILURE TO FULLY AND TRULY DISCLOSE MATERIAL FACTS ALSO RELATE TO THE STATE OF ASSESSMENT PROCE EDINGS AT THE SECOND STAGE. LD. DR FURTHER POINTED OUT THAT THERE CAN BE OMISSION A ND FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY MATERIAL FACTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THIS CAN HAPPEN WHEN THE ASSESSEE DOES NOT DISCLOSE OR FURNISH TO THE AO COMPLETE AND CORRECT INFORMATI ON AND DETAILS IT IS REQUIRED AND UNDER AN OBLIGATION TO DISCLOSE. LD. COUNSEL S TRENUOUSLY CONTENDED THAT TO SHOW THAT THE ASSESSEE HAS FURNISHED FULLY AND TRUL Y MATERIAL FACTS IN THE RETURN OF INCOME OR IN THE TAX AUDIT REPORT AT THE FIRST STAG E AND ALSO DURING THE ASSESSMENT ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 4 PROCEEDINGS AT THE SECOND STAGE IS ON THE ASSESSEE. LD. DR ALSO CONTENDED THAT IN THE PRESENT CASE, THE ASSESSEE DID NOT FULLY AND TRULY DISCLOSE MATERIAL FACTS ABOUT THE AMOUNT OF RS.23.43 LAKH WHICH WAS WRONGLY CLAIMED BY THE ASSESSEE BEING THE AMOUNT WRITTEN OFF WHICH PERTAINS TO THE DEVELOPMENT OF SOFTWARE AND FORFEITURE OF REGISTRATION CHARGES OF INDUSTRIAL LA ND. LD. DR ALSO POINTED OUT THAT THE AO FOR REASONS RECORDED FOR REOPENING THE ASSES SMENT ALSO NOTED THAT THE AMOUNTS WHICH WERE CLAIMED TO BE WRITTEN OFF IN THE P&L ACCOUNT WERE CAPITAL IN NATURE AND EITHER THE ASSESSEE COULD NOT CLAIM T HE SAME IN THE P&L ACCOUNT OR THEY MUST HAVE BEEN SUO MOTO DISALLOWED BY THE ASSE SSEE AND HAVE BEEN ADDED BACK INTO THE COMPUTATION OF INCOME. LD. DR LASTLY POINTED OUT THAT THE ASSESSEE FAILED TO DISCHARGE HIS DUTIES BY NOT ADDI NG BACK THE SAME INTO HIS COMPUTATION OF INCOME AS PER PROVISIONS OF THE ACT, THEREFORE, THE AO WAS RIGHT AND JUSTIFIED IN ISSUING NOTICE U/S 148 OF THE ACT SHOWING HIS INTENTION OF REOPENING THE ASSESSMENT U/S 147 OF THE ACT. LD. D R ALSO CONTENDED THAT THE CIT(A) WAS NOT CORRECT IN LAW AND ON FACTS IN HOLDI NG THAT THE NOTICE U/S 148 COULD HAVE BEEN ISSUED UPTO 31.3.2008 ONLY AND THE AO HAS ISSUED NOTICE ON 4.9.2009 WHICH IS A JURIDICAL ERROR. LD. DR ALSO P OINTED OUT THAT THE CIT(A) WAS INCORRECT IN HOLDING THAT THERE WAS NO FAILURE ON T HE PART OF ASSESSEE TO FULLY AND TRULY DISCLOSE THE MATERIAL FACTS IN THE RETURN OF INCOME AS WELL AS DURING ASSESSMENT PROCEEDINGS, THEREFORE, THE ORDER OF THE CIT(A) MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE AO. ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 5 4. REPLYING TO THE ABOVE, LD. COUNSEL OF THE ASSESS EE POINTED OUT THAT THE ASSESSEE SUBMITTED ALL MATERIAL FACTS IN THE RETURN OF INCOME AS WELL AS DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO PERTAINING TO THE CLAIM OF THE AMOUNT WRITTEN OFF. LD. COUNSEL HAS ALSO DRAWN OUR ATTENT ION TOWARDS ASSESSEES SUBMISSIONS DATED 23.2.2006 DURING ASSESSMENT PROCE EDINGS AVAILABLE AT PAGES 83 TO 90 OF THE ASSESSEES PAPER BOOK WHEREIN AT PA GE 87, THERE WAS A DETAIL OF DEBTS WRITTEN OFF DURING THE FINANCIAL YEAR UNDER C ONSIDERATION. ON PERUSAL OF RELEVANT PART OF SUBMISSION OF THE ASSESSEE DATED 2 3.2.2006 PERTAINING TO BAD DEBTS, WE OBSERVE THAT THE ASSESSEE HAS SUBMITTED N AMES AND RELEVANT AMOUNT OF THREE PARTIES AND FURTHER EXPLAINED THAT IN THE FIR ST TWO CASES, COMPANY HAS ISSUED LEGAL NOTICES AND AGAINST THE THIRD PARTY, T HE COMPANY HAS FILED CIVIL SUIT FOR RECOVERY OF AMOUNT. LD. COUNSEL OF THE ASSESSE E FURTHER POINTED OUT THAT THE ASSESSEE HAD ALSO MENTIONED THAT THE MANAGEMENT OF THE COMPANY AFTER CONSIDERING THE FACT THAT TOTAL RECOVERY OF AFORESA ID USE DESPITE LEGAL REMEDIES BEING EXERCISED IS HIGHLY UNLIKELY, THEREFORE, DECI SION TO WRITE OFF THE AFORESAID DEBTS. LD. COUNSEL OF THE ASSESSEE FURTHER POINTED OUT THAT THE ASSESSEE AT PAGE 88 ALSO SPECIFICALLY EXPLAINED THAT THE BASIS FOR C LAIMING DEDUCTION OF RS.20,42,748 BEING AMOUNT ADVANCED TO M/S SHONKH TE CHNOLOGIES INTERNATIONAL LTD. TOWARDS DEVELOPMENT OF SOFTWARE AND THE SUM OF RS.3,00,431/- REPRESENTED AMOUNTS FORFEITED BY GREATER NOIDA INDUSTRIAL AUTHO RITY TOWARDS AN ABORTED PROJECT. IN THIS SITUATION, WHEN THE ASSESSEE IN I TS WRITTEN SUBMISSIONS AND EXPLANATION SUBMITTED BEFORE THE AO DURING ORIGINAL ASSESSMENT PROCEEDINGS ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 6 DATED 20.3.2006 AT PAGE 87 TO 90 OF ASSESSEES PAPE R BOOK HAS GIVEN ALL DETAILS REGARDING IMPUGNED AMOUNTS WRITTEN OFF PERTAINING T O M/S SHONKH TECHNOLOGIES INTERNATIONAL LTD. AND GREATER NOIDA INDUSTRIAL AU THORITY WHICH WERE PICKED UP BY THE AO, THEN IT CANNOT BE SAID THAT THERE WAS A FAILURE ON THE PART OF ASSESSEE TO FULLY AND TRULY DISCLOSE THE RELEVANT MATERIAL F ACTS DURING ASSESSMENT PROCEEDINGS. 5. FINALLY, LD. COUNSEL OF THE ASSESSEE SUBMITTED T HAT IN THIS SITUATION, THE ACTION OF THE AO ISSUING NOTICE U/S 148 OF THE ACT AND FRAMING REASSESSMENT U/S 143(3) R/W SECTION 147 OF THE ACT IS CLEARLY HIT BY THE FIRST PROVISO TO SECTION 147 OF THE ACT, THEREFORE, THE IMPUGNED ORDER OF THE CI T(A) IS CORRECT AND JUSTIFIED AND THE SAME MAY KINDLY BE UPHELD DISMISSING THE AP PEAL OF THE REVENUE. 6. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS OF BOTH THE SIDES, AT THE VERY OUTSET, WE RESPECTFULLY REPRODUCE THE RELEVANT OPERATIVE PART OF THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT OF DE LHI IN THE CASE OF DALMIA PVT. LTD. VS CIT (SUPRA) AS RELIED BY LD. DR WHEREI N THEIR LORDSHIPS IN PARA 21 OF THE JUDGEMENT HELD AS FOLLOWS:- 21. THE SECOND QUESTION WHICH ARISES FOR CONSIDERA TION IS WHETHER THE ASSESSEE HAD MADE FULL AND TRUE DISCLOS URE OF MATERIAL FACTS. WE HAVE ALREADY REPRODUCED ABOVE TH E CONTENTION OF THE ASSESSEE IN THIS REGARD IN THE OBJECTIONS. W E HAVE ALSO REFERRED TO THE TWO LETTERS WRITTEN BY THE ASSESSIN G OFFICER ASKING FOR DETAILS OF SUNDRY CREDITORS BEING LETTERS DATED 14TH SEPTEMBER, 2005 AND 14TH OCTOBER, 2005. THE PETITIO NER WAS CALLED UPON AND ASKED TO FURNISH NAMES AND ADDRESSE S OF THE SUNDRY CREDITORS AND SINCE WHEN THE AMOUNT WAS OUTS TANDING. ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 7 THE PETITIONER WAS ALSO ASKED TO EXPLAIN DETAILS OF EACH CREDITOR. THERE IS NOTHING ON RECORD AND IT IS NOT EVEN THE S TAND OF THE PETITIONER THAT THOSE DETAILS IN RESPECT OF ALL PAR TIES WERE FURNISHED. IF THERE IS NO DISCLOSURE AND DETAILS WE RE NOT FURNISHED, THERE CANNOT BE FULL AND TRUE DISCLOSURE . IN W.P.(C) NO. 9036/ 2007, HONDA SIEL POWER PRODUCTS LTD. VS. THE DEPUTY COMMISSIONER OF INCOME TAX AND ANR ., DECISION DATED 14TH FEBRUARY, 2011, WE HAD HELD: '10. ......THE TERM 'FAILURE' ON THE PART OF THE AS SESSEE IS NOT RESTRICTED ONLY TO THE INCOME-TAX RETURN AND THE CO LUMNS OF THE INCOME-TAX RETURN OR THE TAX AUDIT REPORT. THIS IS THE FIRST STAGE. THE SAID EXPRESSION 'FAILURE TO FULLY AND TRULY DIS CLOSE MATERIAL FACTS' ALSO RELATE TO THE STAGE OF THE ASSESSMENT P ROCEEDINGS, THE SECOND STAGE. THERE CAN BE OMISSION AND FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY MATERIAL F ACTS DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. THIS CAN HAPP EN WHEN THE ASSESSEE DOES NOT DISCLOSE OR FURNISH TO THE ASSESS ING OFFICER COMPLETE AND CORRECT INFORMATION AND DETAILS IT IS REQUIRED AND UNDER AN OBLIGATION TO DISCLOSE. BURDEN IS ON THE A SSESSEE TO MAKE FULL AND TRUE DISCLOSURE.' IN SUCH CIRCUMSTANCES, IT CANNOT BE HELD THAT THERE WAS FULL AND TRUE DISCLOSURE BY THE PETITIONER-ASSESSEE. THE SEC OND CONTENTION OF THE PETITIONER FAILS. 7. IN VIEW OF ABOVE, IF WE ANALYSE THE FACTS AND CI RCUMSTANCES OF THE PRESENT CASE, FIRSTLY WE NOTE THAT THE PRESENT CASE IS PERTAINING TO AY 2003-04 WHEREIN THE AO ISSUED NOTICE U/S 148 OF THE ACT ON 4.9.2009 WHICH IS BEYOND FOUR YEARS AS THE AO COULD HAVE STARTED PROCEEDINGS U/S 147 OF THE ACT AFTER THE END OF FOUR YEARS FROM THE END OF 2003-04 I.E. PROC EEDINGS OF REOPENING OF ASSESSMENT COULD HAVE BEEN INITIATED BY WAY OF ISSU ING NOTICE U/S 148 OF THE ACT BY 31.3.2008. ADMITTEDLY AND UNDISPUTEDLY, THE AO HAD ISSUED NOTICE ON 4.9.2009 PERHAPS BY INVOKING AND APPLYING FIRST PRO VISO TO SECTION 147 OF THE ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 8 AC. THE PROVISIONS OF SECTION 147 ALONG WITH FIRST PROVISO ARE BEING REPRODUCED BELOW FOR THE SAKE OF CLARITY IN OUR OBS ERVATIONS AND CONCLUSION:- 147. IF THE 89 [ASSESSING] OFFICER 90 [HAS REASON TO BELIEVE 91 ] THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSES SMENT 91 FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISI ONS OF SECTIONS 148 TO 153 , ASSESS OR REASSESS 91 SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSME NT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF THE PROCEEDINGS 91 UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS T HE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : 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 THI S SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR 92 , UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF TH E FAILURE 92 ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) O F SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS 92 NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT Y EAR 8. WE FURTHER OBSERVE THAT THE CIT(A) GRANTED RELIE F FOR THE ASSESSEE ON LEGAL GROUNDS WITH FOLLOWING OBSERVATIONS AND CONCL USION:-- 5 . RE: GROUND OF APPEAL NOS. 1.3 & 1.4: BARRED BY LIMITATION IN TERMS OF PROVISO TO SECTION 147, THER E BEING NO FAILURE ON PART OF THE APPELLANT TO DISCLOSE MATERI AL FACTS. THE APPELLANT HAS SUBMITTED THAT THERE HAS BEEN NO FAIL URE ON ITS PART TO DISCLOSE THE MATERIAL FACTS DUE TO WHICH THE AO COULD HAVE STARTED PROCEEDINGS U/S 147 AFTER THE END OF FOUR Y EARS FROM THE AY 2003-04 I.E. PROCEEDING COULD HAVE INITIATED BY WAY OF ISSUING OF NOTICE BY 31.3.2008; IN THIS CASE THE AO HAD ISSUED THE NOTICE DATED 4.9.2009 WHICH IS NOT AS PER LAW. A NU MBER OF CITATIONS HAVE BEEN REFERRED TO IN SUPPORT OF THE A FORESAID ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 9 CONTENTION E.G. CIT VS TIRATH RAM AHUJA(HUF)306 ITR 173(DEL) AND HARYANA ACRYLIC MFG. CO. VS CIT 308 ITR 38(DEL) . 5.1 THE ISSUE INVOLVED AND THE SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CONSIDERED. IN VIEW OF THE FACTUAL POSITI ON AND FAILURE ON THE PART OF THE AO TO BRING ON RECORD ANY LAPSE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERI AL FACTS, THE RATIO OF THE JUDGEMENTS REFERRED ABOVE IS APPLICABLE. THE NOTICE U/S 148 COULD HAVE BEEN ISSUED UPTO 31.3.2008 ONLY; WHE REAS IN THE APPEAL UNDER CONSIDERATION THE AO HAS ISSUED THE NO TICE ON 4.9.2009, WHICH IS A JURISDICTIONAL ERROR. THE ASSE SSMENT ORDER IS THEREFORE NOT VALID. THE SAME IS CANCELLED AND THE GROUND OF APPEAL IS ALLOWED. 9. IN VIEW OF ABOVE, IT IS APPARENT THAT THE AO ISS UED NOTICE U/S 148 OF THE ACT AFTER EXPIRY OF FOUR YEARS ON 4.9.2009. AS PER FIRST PROVISO TO SECTION 17 OF THE ACT, THE AO IS NOT EMPOWERED TO TAKE ANY ACTION U/S 147 OF THE ACT AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT A SSESSMENT 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 T O MAKE A RETURN U/S 139 OR IN RESPONSE TO NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECE SSARY FOR THAT ASSESSMENT YEAR. IN VIEW OF SAID LEGAL POSITION, PRESENT CASE FALLS WITHIN THE AMBIT OF FIRST PROVISO TO SECTION 147 OF THE ACT WHEREIN THE ASSES SMENT CAN BE REOPENED AND NOTICE U/S 147 OF THE ACT CAN BE ISSUED ONLY BY REA SON OF THE FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIA L FACTS PERTAINING TO THE ISSUE WHICH HAS BEEN PICKED UP BY THE AO FOR RECORDING RE ASONS FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. IN THE PRESENT CASE, TH E AO HAS PICKED UP THE ISSUE OF WRITTEN OFF AMOUNT OF RS.23,43,179 PERTAINING TO AMOUNT ADVANCED TO M/S ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 10 SHONKH TECHNOLOGIES INTERNATIONAL LTD. AND THE AMOU NT FORFEITED BY GREATER NOIDA INDUSTRIAL AUTHORITY TOWARDS ABORTED PROJECT. AS WE HAVE NOTED ABOVE, THE ASSESSEE FURNISHED ENTIRE DETAILS ON THIS ISSUE VIDE ITS SUBMISSIONS DATED 26.2.2006 DURING THE ORIGINAL ASSESSMENT PROCEEDING S WHICH HAVE BEEN PLACED BY THE ASSESSEE IN ITS PAPER BOOK PAGES 83 TO 90. IN THIS SITUATION, THE AO WAS NOT CORRECT AND JUSTIFIED IN HOLDING THAT THE ASSES SEE DID NOT TRULY AND FULLY DISCLOSE ALL MATERIAL FACTS RELEVANT TO THE IMPUGNE D ISSUE OF WRITTEN OFF AMOUNT OF RS.23,43,179/- DURING ORIGINAL ASSESSMENT PROCE EDINGS. THEREFORE, THE CASE OF THE AO GOES OUT OF THE AMBIT OF FIRST PROVISO T O SECTION 147 OF THE ACT. 10. AT THIS JUNCTURE, THIS WOULD BE INCOMPLETE WITH OUT FOLLOWING THE DICTA LAID DOWN BY JURISDICTIONAL HIGH COURT IN THE CASE OF DALMIA PVT. LTD. WHEREIN THEIR LORDSHIPS REFERRED TO ITS EARLIER JUDGMENT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS DCIT DATED 14.2.2011 IN WP (CIVIL) NO.9036/2007 WHEREIN IT WAS HELD THAT THERE CAN BE OMISSION AND FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY MATERIAL FACTS DURING THE COURSE OF ASSESSMENT AND THIS CAN HAPPEN WHEN THE ASSESSEE DO ES NOT DISCLOSE OR FURNISH TO THE AO COMPLETE AND CORRECT INFORMATION AND DETA ILS PERTAINING TO THE ISSUE ALLEGED BY THE AO. IN THE PRESENT CASE, AT THE COS T OF REPETITION, WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE HAS FURNISHED AND DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS PERTAINING TO THE ISSUE OF WRITT EN OFF AMOUNT OF RS. 23,43,179/- AS PICKED UP AND ALLEGED BY THE AO WHIL E RECORDING REASONS FOR ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 11 ISSUANCE OF NOTICE U/S 147 AND 148 OF THE ACT. THE REFORE, WE RESPECTFULLY HOLD THAT IN OUR HUMBLE UNDERSTANDING, THE RATIO LAID DO WN BY THE HONBLE HIGH COURT OF DELHI IN THE CASE OF DALMIA PVT. LTD. VS C IT DOES NOT SUPPORT THE CASE OF THE LD. DR AND ON THE OTHER HAND, THE RATIO LAID DOWN BY HONBLE JURISDICTIONAL HIGH COURT OF DELHI IN THIS CASE SUP PORTS THE CONTENTION AND CASE OF THE ASSESSEE IN THE PRESENT CASE IN THE PECULIAR FACTS AND CIRCUMSTANCES AS NOTED ABOVE BY US. 11. ON THE BASIS OF FOREGOING DISCUSSION, WE REACH TO A LOGICAL CONCLUSION THAT THE CIT(A) WAS QUITE JUSTIFIED AND CORRECT IN GRANTING RELIEF FOR THE ASSESSEE BY ALLOWING LEGAL CONTENTION AND GROUND OF THE ASSESSEE AGAINST ISSUANCE OF NOTICE U/S 148 OF THE ACT BEYOND THE PR ESCRIBED PERIOD OF FOUR YEARS SPECIFICALLY WHEN THERE WAS NO FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY AND TRULY MATERIAL FACTS RELEVANT TO THE ISSUE OF W RITTEN OFF DEBTS. ACCORDINGLY, SOLE GROUND OF THE REVENUE BEING DEVOID OF MERITS I S DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/08/2015. SD/- SD/- (N.K. SAINI) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 07 TH AUGUST 2015 GS ITA NO. 1303/DEL/2013 ASSTT.YEAR: 2003-04 12 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR