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The Central India El... v. Income Tax Officer, ...
Case Summary — Opinion by Sanjay Kishan Kaul, J.
Factual and Procedural Background
The assessee was a company running electricity-generation units at Bilaspur and Katni. The Government of Madhya Pradesh acquired these units in 1964 when the appellant's licence expired; compensation for compulsory acquisition was initially fixed at Rs. 5,85,000/-, paid in 1964. The assessee filed an original return on 07.10.1965 (claiming a loss) and a revised return on 16.12.1967. An assessment for the year 1965-66 was completed on 13.01.1969 at a total loss of Rs. 56,611/-, which could not be carried forward due to closure of business. Possession had been delivered to the M.P. Electricity Board in 1964.
A dispute arose over the purchase price of the acquired land; arbitrators and an umpire were involved, with the umpire enhancing compensation. The award was made rule of the Court, and the matter proceeded through appeals in the Madhya Pradesh High Court and ultimately to the Supreme Court, which on 24.07.1985 modified the High Court's order by reducing compensation by Rs. 60,000/-.
Enhanced compensation was partly received in the previous year 1978-79 (relevant to AY 1979-80). The assessee deposited the enhanced compensation in a nationalized bank and claimed exemption under Section 54-E of the Income Tax Act.
On 15.11.1981 (notice dated 15.11.1981, later referenced as 15.12.1981 in the order), a notice under Section 148 was issued seeking to reopen assessment for AY 1965-66. The ITO alleged that long-term capital gains (LTCG) on transfer of assets had escaped assessment and assessed income under Section 143(3). The assessee appealed to the CIT(A), which largely affirmed the ITO (holding exemption under Section 54‑E not available and that reassessment was valid). The assessee then appealed to the Income Tax Appellate Tribunal (Tribunal), which partly allowed the appeal and excluded the amount of capital gain not chargeable under Section 54‑E. The present appeal to this Court challenges the Tribunal's order and the validity of reopening assessment under Sections 147/148 and the Board's approval under Section 151(i).
Legal Issues Presented
- Whether, on the facts and circumstances, the Tribunal was justified in holding that re-assessment proceedings under Section 147(a) read with Section 148 of the Income-tax Act, 1961 had been rightly initiated against the assessee?
- Whether the Tribunal was right in holding that valid approval had been accorded by the Central Board of Direct Taxes under Section 151(i) of the Income-tax Act for reopening of the assessment of the assessee?
Arguments of the Parties
Appellant's Arguments
- The Section 148 notice was unsustainable because the mandatory Board satisfaction under Section 151 (required for notices issued beyond eight years but within sixteen years) was not properly recorded. The proforma merely contained a rubber-stamp endorsement "Yes. The Board is satisfied" signed by an Under Secretary, showing non-application of mind and lack of authorization to record Board's satisfaction.
- Section 147 requires the ITO to have a reason to believe that income chargeable to tax escaped assessment because of omission or failure by the assessee to disclose fully and truly all material facts. The assessee argued that it had made necessary disclosures, including litigation and reference to the award, in the Board of Directors' report filed with the returns.
- The final amount of compensation was not determinable at the time of filing the original return because the matter was sub judice; subsequent judicial modifications occurred, and final quantification came only with the Supreme Court decision. Thus the assessee could not have disclosed a fact that did not exist at the material time.
- The assessee had disclosed the enhanced compensation when it was received and, having invested it in bonds, availed itself of Section 54‑E relief. That step — availing a legitimate exemption under a later-enacted provision — cannot justify reopening the earlier closed assessment for AY 1965‑66.
Respondent / Revenue's Arguments (as recorded)
- The ITO asserted that long-term capital gains had accrued in 1964 on transfer of assets and had escaped assessment; the assessee failed to disclose these amounts in the returns filed in 1965 and 1967.
- The ITO computed capital gains (LTCG) and assessed income under Section 143(3) for AY 1965‑66. The CIT(A) affirmed the ITO's view that capital gains on the Bilaspur and Katni units were taxable and held that Section 54‑E exemption was not available (it was inserted by Finance Act, 1979 w.e.f. 01.04.1979) and that the case was not covered by Section 155(7)(a) (retrospectively inserted by Finance Act, 1978 w.e.f. 01.04.1974).
- The Tribunal, however, partly allowed the assessee's appeal by excluding the amount of capital gain not chargeable to tax under Section 54‑E, effectively accepting that some enhanced compensation could be exempt in AY 1979‑80.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta, (1961) 41 ITR 191 (SC) | Supports the proposition that a pre-requisite of non-disclosure is required before the ITO exercises reassessment powers. | Relied upon by the appellant to show that ITO must have non-disclosure before reopening; the Court references it as one of the authorities supporting the appellant's position on disclosure duties. |
| CIT v. Shri Tirath Ram Ahuja (HUF), (2008) 306 ITR 173 (DEL) | Emphasizes that undisclosed facts must exist at material times between return filing and assessment; facts coming into existence after assessment cannot be material facts for Section 147. | Quoted by the appellant and the Court to support that facts not in existence at assessment time cannot be treated as undisclosed material facts to justify reassessment. |
| P.C. Gulati, Voluntary Liquidator, Panipat Electric Supply Co. Ltd. v. CIT, Delhi, (1972) 86 ITR 501 (DEL) | Held that until the price/compensation is finally settled, the transaction is not a sale; amount becomes assessable only in the year when the price is settled. | Used to support that enhanced compensation became taxable only in the year when settlement/finality occurred (and not at earlier dates when possession was taken). |
| Harish Chandra v. CIT, (1985) 154 ITR 478 (DEL) | In compulsory acquisition cases, no debt is due until compensation is judicially determined at all stages; claims prior to judicial determination are inchoate and not accruable as income. | Cited by both sides; the Court treats its ratio as applicable to hold that enhanced compensation accrues only upon judicial determination and finality. |
| Topandas Kundanmal v. CIT, (1978) 114 ITR 237 (GUJ) | Authorities indicating that compensation is not taxable until amount is determined. | Quoted with approval in support of the principle that enhanced compensation accrues only when judicially determined. |
| CIT, West Bengal II v. Hindustan Housing & Land Development Trust Ltd., (1986) 161 ITR 524 (SC) | Income accrues only when a debt is due or credited; mere claim does not amount to a certain sum of compensation for accrual purposes. | Relied upon to support that until compensation is fixed, no income accrues; used by the Court to reinforce the accrual principle in the present facts. |
| New Friends Cooperative House Building Society Ltd. v. CIT, (2010) 327 ITR 39 (P&H) | Amount received by an assessee is taxable only after attaining finality from the highest Court. | Cited to support that taxation of enhanced compensation follows final judicial determination; Court notes parallel authority. |
| ITO, Calcutta v. Lakhmani Mewal Das, (1972) 103 ITR 437 (SC) | Two conditions for jurisdiction to issue Section 148 notice beyond stipulated period: (i) reason to believe income chargeable to tax has escaped; and (ii) reason to believe such escapement is by reason of omission/failure to disclose material facts. Also duty of assessee is to disclose primary facts fully and truly. | Adopted by the Court as the controlling standard. The Court applied it to conclude the assessee had disclosed primary facts and that reassessment was not justified on the basis of a change of opinion. |
| Chuggamal Rajpal v. S.P. Shaliha, (1971) 79 ITR 603 (SC) | Absence of reasons recorded renders Board's decision/approval vulnerable; if report lacks reasons, approval may be invalid. | Relied upon by the appellant to challenge the mechanical rubber-stamp approval; the Court examined these authorities to test whether Board applied its mind. |
| Chanchal Kumar Chatterjee v. Income Tax Officer, ‘B’ Ward, Central Salaries Circle, Calcutta, (1972) 93 ITR 130 (CAL) | Rubber-stamp endorsements or lack of material produced indicate non-application of mind in recording satisfaction/approval. | Used by the appellant; the Court assessed whether the Board's stamped endorsement amounted to considered satisfaction and found the stamping problematic. |
| Govinda Choudhury & Sons v. Income Tax Officer, Ward 'A', Berhampur, (1975) 109 ITR 370 (ORI) | Supports the proposition that absence of reasons or mere mechanical endorsements show non-application of mind. | Relied upon by the appellant; the Court considered these precedents in evaluating the adequacy of the Board's recorded satisfaction. |
| Union of India v. M.L. Capoor, AIR 1974 SC 87 | Rubber-stamp reasons given mechanically do not amount to adequate "reasons"; reasons must show rational nexus and reveal application of mind. | Quotations from this case were used by the Court to support the view that the Board's rubber-stamp endorsement failed to disclose adequate reasoning and application of mind. |
Court's Reasoning and Analysis
The Court addressed the competing contentions in a structured manner, considering (i) adequacy of Board's approval under Section 151, and (ii) whether the conditions under Section 147/148 for reassessment were satisfied (i.e., escaped income and omission/non-disclosure).
On Board's Approval (First Plea)
The Court examined the instrument of Board approval (a proforma with an endorsement "Yes. The Board is satisfied" with a rubber stamp and signature of an Under Secretary). Drawing on authorities (notably Union of India v. M.L. Capoor and the cases relied upon by appellant), the Court held that a mere rubber stamp suggests mechanical approval and non-application of mind. The Court emphasized that reasons are the link between materials and conclusions and that a proper endorsement setting out brief reasons was expected. The absence of such recorded reasons led the Court to find force in the appellant's contention that the Board had not properly applied its mind; had it done so, the Court suggested reassessment likely would not have been ordered.
On Existence / Non-Disclosure of Material Facts (Second & Third Pleas)
The Court applied the twofold test from Lakhmani Mewal Das: the ITO must have (i) reason to believe income chargeable to tax escaped assessment, and (ii) reason to believe such escapement resulted from omission/failure to disclose material facts. The Court found that the assessee had made full, complete and truthful disclosure of primary facts — including the submission of the Board of Directors' report which explicitly informed about part payments, arbitration and pending umpire appointment, and that the market value/compensation determination was pending. The Court relied on authorities (including Tirath Ram Ahuja, P.C. Gulati, Harish Chandra, Hindustan Housing, and New Friends) to hold that enhanced compensation, being contingent and subject to judicial determination, did not constitute a material fact that could have been disclosed at the time of the original assessment; such facts only crystallize upon final judicial determination.
The Court further stressed that once an assessee has disclosed primary facts, it is the ITO's responsibility to draw inferences — and mere change of opinion by the ITO, after drawing an inference from disclosed primary facts, does not justify reopening a closed assessment.
On Section 54‑E Exemption and Reopening (Fourth Plea)
The Court observed that the assessee had properly disclosed receipt of enhanced compensation in the relevant assessment year and had invested it to claim Section 54‑E relief. The availability of a later-enacted exemption (Section 54‑E) in the assessment year when the enhanced compensation was received cannot be a justification to reopen an earlier closed assessment year (AY 1965‑66). Thus, the mere fact that the assessee availed itself of a legitimate exemption in the year of receipt does not supply grounds for reassessment of the older closed year.
Overall Conclusion of Analysis
For all the above reasons — inadequacy of the Board's recorded satisfaction and absence of any failure by the assessee to disclose primary facts that existed at the material time — the Court concluded that the impugned order of the Tribunal sustaining reassessment proceedings was not sustainable.
Holding and Implications
Holding: The Court allowed the appeal and set aside the impugned order of the Tribunal. In concrete terms:
- The notice issued under Section 148 dated 15.12.1981 is quashed, and all proceedings pursuant thereto are quashed.
- Both questions of law framed before the Court were answered in favour of the appellant/assessee and against the respondent/Department.
- The appeal is allowed; parties are directed to bear their own costs.
Implications: The direct effect is that the reassessment proceedings and subsequent actions initiated pursuant to the Section 148 notice are annulled for this assessee. The Court's decision rests on (a) invalidity of the Board's rubber-stamped approval under Section 151 for reasons recorded, and (b) the principle that a taxpayer who has disclosed primary facts cannot be penalized by reopening merely because a different inference could be drawn later or because a later-enacted exemption was availed. The opinion does not purport to lay down any novel broad precedent beyond applying existing authorities to the facts at hand; it resolves the dispute between the parties by quashing the reassessment and related proceedings.
Sanjay Kishan Kaul, J.
1. This appeal arises out of the Order dated 04.03.1999 of the Income Tax Appellate Tribunal (for short, ‘the Tribunal’) in terms whereof the appeal of the assessee relating to the assessment year 1965-66 and the appeal filed by the Revenue relating to the assessment year 1979-80 were partly allowed, while the cross-objections of the assessee relating to the assessment year 1979-80 were dismissed.
2. The questions of law, which arise for consideration before us in the present appeal, are:
“(1) Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that re-assessment proceedings under Section 147(a) read with Section 148 of the Income-tax Act, 1961 had been rightly initiated against the assessee?
(2) Whether the Tribunal was right in holding that valid approval had been accorded by the Central Board of Direct Taxes under Section 151(i) of the Income-tax Act for reopening of the assessment of the assessee?”
3. The necessary facts are being set out hereinafter. The assessee company was engaged in the generation and supply of electricity from its units at Bilaspur and Katni. These units were acquired by the Government of Madhya Pradesh in the year 1964 when the appellant's licence expired & not renewed. The compensation for compulsory acquisition of both the units was fixed at Rs. 5,85,000/- and paid to assessee in the year 1964 itself. The assessee filed its return on 07.10.1965 claiming a loss of Rs. 50,572/- and thereafter revised return on 16.12.1967 declaring a loss of Rs. 1,07,183/- on account of retrenchment. The assessment was completed at the behest of the assessee at a total loss of Rs. 56,611/- on 13.01.1969 for the assessment year 1965-66 which was not allowed to be carried forward due to closure of business. It is not disputed that the assessee company also delivered possession to the M.P Electricity Board in the year 1964 itself.
4. Since dispute arose in respect of the purchase price of the acquired land as the appellant company made a claim for higher compensation, each party nominated an Arbitrator. As the Arbitrators differed on the claim, the matter was referred to the Umpire, who made his Award for enhancement of compensation, which was made Rule of the Court. An appeal was preferred before the Madhya Pradesh High Court, which was disposed of vide Order dated 14.09.1971 The matter was taken up to the Supreme Court & decided vide its Order dated 24.07.1985 thereby modifying the Order of the Madhya Pradesh High Court by reducing the amount of compensation by Rs. 60,000/-.
5. It is not disputed that the assessee received some payment in the previous year 1978-79 relatable to the assessment year 1979-80. Since the amount of enhanced compensation was deposited by the assessee in a nationalized bank, the benefit of Section 54-E of the Income Tax Act, 1961 (for short, ‘IT Act’) was claimed by the assessee.
6. A notice dated 15.11.1981 under section 148 of the it act was issued to the assessee appellant company requiring it to furnish its return for assessment. The assessee filed its response vide letter dated 14.02.1982 thereby declaring a loss of Rs. 56,611/- as assessed originally on 13.01.1969 It was claimed by the Income Tax Officer (for short, ‘ITO’) that since income had accrued to the assessee company under the head of ‘Long Term Capital Gains' (LTCG) on transfer of assets in respect of its two units, it was liable to tax in the same assessment year when the transfer took place and escaped assessment. The ITO assessed that the appellant derived LTCG to the extent of Rs. 9,48,357/- - Rs. 2,24,847/- on land and Rs. 7,23,510/- on assets entitled to depreciation. The ITO found that the assessee failed to disclose the aforesaid amounts in both the returns filed on 07.10.1965 and 16.02.1967 and computed a sum of Rs. 8,91,746/- under Section 143(3) as the income chargeable to tax.
7. Being aggrieved by the notice under Section 148 dated 15.12.1981 for re-assessment as well as the Order of the ITO dated 24.03.1986, the assessee filed appeal before the Commissioner of Income Tax (Appeals) (for short, ‘the CIT(A)’), which was partly allowed. The assessee contended that since it received a sum of Rs. 11,57,965/- only on 28.09.1978 from the Government of Madhya Pradesh, which was deposited in the nationalized bank, it would be exempt from assessment for the assessment year 1979-80 as per the provisions of Section 54-E. It was submitted by the assessee before the CIT(A) that the Assessing Officer had observed that as per Section 45(1), any profit or gain arising from transfer of capital assets affected in a previous year was chargeable to tax under the head of ‘Capital Gains’ as income of the previous year when the transfer took place, i.e, 1964. Therefore, the assessee was liable to pay additional tax on the income that escaped assessment.
8. The CIT(A), while affirming the order of the Assessing Officer, held that the assessee had rightly been taxed on account of capital gain arising out of both the units at Bilaspur and Katni. It was further held that the assessee company was not entitled to the benefit of exemption under Section 54-E as it was inserted by the Finance Act, 1979 w.e.f 01.04.1979 It was also observed that the case of the assessee company was not covered under section 155(7)(a) as the same was inserted by the Finance Act, 1978 with retrospective effect from 01.04.1974
9. The appellant-assessee company being aggrieved by the order of the CIT(A) preferred an appeal before the Tribunal, which was partly allowed to the extent of exclusion of the amount of capital gain not chargeable to tax as per Section 54-E & it was held that the appellant is entitled for exemption of the same.
10. We may note that the relevant provisions as applicable for the assessment year in question are as under:
“147. Income escaping assessment.-- If --
(a) the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under Section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or
(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recomputed the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in Sections 148 to 153 referred to as the relevant assessment year).
… … … … … … … …
149. Time limit for notice.-- (1) No notice under Section 148 shall be issued --
(a) in cases falling under clause (a) of Section 147 --
(i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub-clause (ii);
(ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year;
… … … … … … … …
151. Sanction for issue of notice.-- (1) No notice shall be issued under Section 148 after the expiry of eight years from the end of the relevant assessment year unless the Board is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.
… … … … … … … …”
(emphasis supplied)
11. In the appeal preferred before us, learned counsel for the appellant set forth his challenge in the following terms :-
(i) The notice issued under section 148 of the it act itself was stated to be unsustainable in view of the non-compliance of the provisions of section 151 of the it act. The case being one where the notice was issued beyond a period of 8 years, but within a period of 16 years, the satisfaction of the Board that it is a fit case for issue of such notice was a prerequisite and this had not been met. In this behalf, the satisfaction was stated to be contained in a proforma where against the column as to ‘Whether the Board was satisfied of the reasons recorded’, an endorsement was made ‘Yes. The Board is satisfied’, which was signed by the Under Secretary on 23.11.1981 This satisfaction was in the form of a rubber stamp and, thus, it was stated to be suffering from non-application of mind apart from the fact that nothing had been placed on record to show that the Under Secretary had been authorized to record such satisfaction of the Board.
(ii) In order for the provisions of section 147 of the it act to apply, the ITO has to have reason to believe that income chargeable to tax had escaped assessment for that year as a consequence of ‘omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for assessment for that year’. It was submitted that all the necessary facts were, in fact, set out and the factum of the litigation pending and reference to the Award formed a part of the Report of the Board of Directors, which was filed along with the returns.
(iii) The appellant or for that matter the Department could not have envisaged at the time of filing of the return as to what would be the final compensation to be determined in the matter as the issue was sub judice. As the sequence of facts have gone, it has shown that there have been modifications of the Awards by the superior Courts and the matter only culminated into a final quantification when the Supreme Court decided the matter.
(iv) The appellant as assessee had disclosed the enhanced amount of compensation received in the relevant assessment year. Just because the appellant could avail of the benefit of the then existing provisions of Section 54-E by depositing the amount and, thus, not incur the liability of capital gains would not imply that the same can be reason to re-open the closed chapter of the assessment year 1965-66.
12. To support its various pleas, the appellant relied upon various judgments. The judgment in Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta, (1961) 41 ITR 191 (SC) was relied upon to support the plea that the pre-requisite of non-disclosure has to be there for the ITO to exercise the power. In this behalf, an important judgment referred to was in the case of CIT v. Shri Tirath Ram Ahuja (HUF), (2008) 306 ITR 173 (DEL) where it was emphasized that the facts, which have not been disclosed, must be such facts which exist at all material times between the filing of the return and the order of the assessment. The relevant portion is extracted as under :-
“14. The language employed in proviso to Section 147 of the Act shows that the disclosure thereby contemplated is to be with regard to material facts and, therefore, must necessarily be in respect of such facts which exists at all material times between the filing of the return and the order of assessment. A material fact which is not in existence right up to the time of assessment cannot possibly be disclosed. Therefore, a fact which comes into existence subsequent to the making of the assessment cannot be a material fact within the purview of Section 147 of the Act. Further, the duty to disclose material facts necessarily postulates existence of a thing or material. If a material is not in existence or if a material is such of which the assessed had no knowledge there would be no duty to disclose such material.”
(emphasis supplied)
13. In P.C Gulati, Voluntary Liquidator, Panipat Electric Supply Co. Ltd. v. CIT, Delhi, (1972) 86 ITR 501 (DEL), the Government acquired an electricity supply undertaking in 1954, but the compromise regarding compensation was reached only in 1962. It was held that even though by acquiring an undertaking, the Government may have been vested with the possession, unless the price is settled, the transaction does not become a sale and only after the price had been settled that it becomes due to the assessee. Thus, the amount did not become taxable in the assessment year 1955-56, but became assessable only in the previous year relevant to the assessment year 1963-64 when such price was settled.
14. A judgment commonly relied upon by both the sides was Harish Chandra v. CIT, (1985) 154 ITR 478 (DEL) on the issue of year of chargeability in case of compulsory acquisition. In our considered view, the relevant ratio of the judgment, which would apply to this case, is that in case of such compulsory acquisition, no debt is due or was due until the amount of compensation is judicially determined at all stages provided in the Land Acquisition Act, 1894. It was, thus, observed that a claim made by the assessee was in respect of an inchoate right and unless the question of payment of enhanced compensation was decided and the amount of enhanced compensation became determinable and payable, the amount could not be said to arise or accrue. The observations made in Topandas Kundanmal v. CIT, (1978) 114 ITR 237 (GUJ) were also quoted with approval.
15. In CIT, West Bengal II v. Hindustan Housing & Land Development Trust Limited, (1986) 161 ITR 524 (SC), the Supreme Court considered the issue as to when the income could be said to accrue or arise for purposes of income-tax. It was held that unless and until a debt is credited in favour of an assessee by somebody, he cannot be said to have acquired a right to receive the income or the income has accrued to him. In the facts of that case, the appeal regarding compensation was still pending. Relying upon various judgments, it was held that if the actual amount of compensation had not been fixed, no income could accrue to him and a mere claim by the assessee could not be said to be a certain sum of compensation. In New Friends Cooperative House Building Society Ltd. v. CIT, (2010) 327 ITR 39 (P&H), it was held that the amount received by an assessee was taxable only after attaining finality from the highest Court.
16. A reference was also made to ITO, Calcutta v. Lakhmani Mewal Das, (1972) 103 ITR 437 (SC) where it was emphasized that there are two conditions, which should be satisfied before the ITO acquires jurisdiction to issue notice under Section 148 in respect of the assessment beyond the stipulated period, i.e, there must be a reason to believe that income chargeable to tax has escaped assessment and the ITO must also have reason to believe that such escapement of income from assessment is by reason of omission or failure on the part of the assessee to disclose fully and truly material facts necessary for assessment of that year. The duty of the assessee was held not to extend beyond making a true and full disclosure of primary facts. Once he has done that, his duty ends and it is for the ITO to draw correct inference from the primary facts. It is not the responsibility of the assessee to advise ITO with regard to the inference, which should be drawn from the primary facts and if an ITO draws an inference, which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for re-opening of assessment.
17. Learned counsel for the appellant also relied upon three judgments to show why on the principles laid down therein, the conduct of the Board would show non-application of mind. In Chuggamal Rajpal v. S.P Shaliha, (1971) 79 ITR 603 (SC), the report submitted by the ITO under Section 151(2) did not mention any reasons for coming to the conclusion that it is a fit case for issue of the notice under section 148 of the it act. This judgment was relied upon in Chanchal Kumar Chatterjee v. Income Tax Officer, ‘B’ Ward, Central Salaries Circle, Calcutta, (1972) 93 ITR 130 (CAL). In this case, there was only a rubber stamp above the signature of the Commissioner and no other relevant material was produced before the Court even when asked for. This was held to be a case of non-application of mind. The judgment in Govinda Choudhury & Sons v. Income Tax Officer, Ward ‘A’, Berhampur, (1975) 109 ITR 370 (ORI) was once again relied upon the judgment in Chuggamal Rajpal's case (supra).
18. We have given our thoughtful consideration to the rival pleas of learned counsel for the parties.
FIRST PLEA:
19. In respect of the first plea, if the judgments in Chuggamal Rajpal's case (supra); Chanchal Kumar Chatterjee's case (supra); and Govinda Choudhury & Sons's case (supra) are examined, the absence of reasons by the assessing officer does not exist. This is so as along with the proforma, reasons set out by the assessing officer were, in fact, given. However, in the instant case, the manner in which the proforma was stamped amounting to approval by the Board leaves much to be desired. It is a case where literally a mere stamp is affixed. It is signed by a Under Secretary underneath a stamped ‘Yes’ against the column which queried as to whether the approval of the Board had been taken. Rubber stamping of underlying material is hardly a process which can get the imprematur of this Court as it suggests that the decision has been taken in a mechanical manner. Even if the reasoning set out by the ITO was to be agreed upon, the least, which is expected, is that an appropriate endorsement is made in this behalf setting out brief reasons. Reasons are the link between the material placed on record and the conclusion reached by an authority in respect of an issue, since they help in discerning the manner in which conclusion is reached by the concerned authority. Our opinion is fortified by the decision of the Apex Court in Union of India v. M.L Capoor, AIR 1974 SC 87 wherein it was observed as under :-
“27. … We find considerable force in the submission made on behalf of the respondents that the “rubber-stamp” reason given mechanically for the supersession of each officer does not amount to “reasons for the proposed supersession”. The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. … … … …
28. … If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. …”
(emphasis supplied)
This is completely absent in the present case. Thus, we find force in the contention of learned counsel for the appellant that there has not been proper application of mind by the Board and if a proper application had taken place, there would have been no reason to re-open the closed chapter in view of what we are setting out hereinafter.
SECOND & THIRD PLEAS:
20. The twin condition of the satisfaction of the ITO, i.e, (i) there must be a reason to believe that income chargeable to tax has escaped assessment; and (ii) the ITO must also have reason to believe that such escapement of income from assessment is by reason of omission or failure on the part of the assessee to disclose fully and truly material facts necessary for assessment of that year, have to be satisfied in view of the judgment in Lakhmani Mewal Das's case (supra).
21. In the present case, there was no lack of disclosure by the assessee. This is, of course, apart from the fact that the assessee could hardly disclose as to what would be the compensation, which he may get ultimately if the plea of enhancement is sustained. The fact remains that copy of the report of the Board of Directors was filed which set out the following :-
“5. The M.P Electricity Board has paid only Rs. 2,85,000/- for Katni and Rs. 3,00,000/- for Bilaspur in account as part payment and in spite of reminders to pay further sums according to their own estimates pending settlement of the market value of the assets have been referred to the Arbitrators appointed by both parties, but the arbitration proceedings have not started so far. Applications for appointment of Umpire are pending in Bilaspur and Jabalpur Distt. Courts. We have submitted statement of our market value of the assets to the Arbitrators, but in spite of demand by one of the Arbitrators, the Electricity Board has not submitted their figures to the Arbitrators and it appears that it will take time in getting the market value determined. New business can be started only when full payment is received from the Electricity Board.”
22. As observed in Lakhmani Mewal Das's case (supra), it is not the duty of the assessee to pin-point what inference have to be drawn by the assessing authority as long as full, complete and truthful disclosure has been made of ‘primary facts’, which, in fact, was made in the present case. Thus, there was nothing, which was not set out, which ought to have been set out as the factum of appeal pending was disclosed.
23. As stated aforesaid, there is no finality emerging in matters of enhancement of compensation as none of the parties can contemplate in advance as to what would be the fate of the appeal proceedings. The facts of the present case show that the Award was interfered with in appeal and again by the Supreme Court. The final picture emerged only when the Supreme Court pronounced its judgment. On receipt of the enhancement compensation, the appellant disclosed the same in its return as was the case in P.C Gulati, Voluntary Liquidator, Panipat Electric Supply Co. Ltd.'s case (supra); Harish Chandra case (supra); Hindustan Housing & Land Development Trust Limited's case (supra); and New Friends Co-operative House Building Society Ltd. v. CIT case (supra). That was the stage when enhanced compensation had to be included in the assessment year in question, which was done by the appellant.
FOURTH PLEA:
24. As noticed aforesaid, the appellant has made the relevant disclosure in the returns for the relevant assessment year when the enhanced compensation was received. The amount was invested by the appellant in Bonds, which entitles him to certain benefits in view of the provisions of Section 54-E of the IT Act. Just because such benefit is available to the appellant for that year in question, which may not have been available for the assessment year 1965-66, cannot be a reason for the assessing authority to reopen the assessment for the year 1965-66.
CONCLUSION:
25. For all the aforesaid reasons, we find that the impugned order of the Tribunal is not sustainable and is accordingly set aside. The notice issued under section 148 of the it act dated 15.12.1981 is quashed and all proceedings pursuant thereto are also accordingly quashed. Consequently, both the questions are answered in favour of the appellant/assessee and against the respondent/Department.
26. The appeal is allowed leaving the parties to bear their own costs.
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