Commissioner of Income Tax Vs. Sanjiv Misra - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - (ii) on the facts and in the circumstance of the case whether the learned tribunal has erred in holding that there was no concealment of income/furnishing of inaccurate particulars without considering the case of revenue and appreciating that the assessee claimed the excess deduction under section 10b even when he knew fully well that the export sale proceeds amounting to rs. 29,48,843 was not received till time of extension granted to assessee and as claim of exemption was in respect of total export sale and thus, assessee was well aware of the fact and it is in this background same lacked bona fides and blind reliance cannot be placed on the report of chartered accountant dt.1. present appeal under section 260a of the it act, 1961 has been filed against the judgment and order dt. 12th sept., 2008 passed by tribunal lucknow bench 'a' lucknow in appeal no. ita no. 564/luck/2008 for the asst. yr. 2003-04.2. following substantial question of law has arisen in the present case:(ii) on the facts and in the circumstance of the case whether the learned tribunal has erred in holding that there was no concealment of income/furnishing of inaccurate particulars without considering the case of revenue and appreciating that the assessee claimed the excess deduction under section 10b even when he knew fully well that the export sale proceeds amounting to rs. 29,48,843 have not been brought into india within the time-limit prescribed under clause (3) of section 10b.3. facts giving rise to instant income-tax appeal are that the assessee filed the return of income on 29th march, 2004 declaring income of rs. 42,01,300. the assessment was framed under section 143(3) at an income of rs. 69,10,841 on 31st march, 2006 and penalty proceedings under section 271(1)(c) were initiated. the assessee had shown export sales of software to the tune of rs. 2,33,66,220 and the net profit was shown at rs. 2,25,36,654. the assessee in form no. 56g, attached with the return of income, reported that an amount of rs. 1,60,81,545 was brought into india and for remaining amount permission had been applied for. it was stated that entire profit of rs. 2,25,36,542 was eligible for exemption under section 10b of the it act. the ao noticed that extension was granted upto 31st dec, 2003 which was further extended upto 31st march, 2004 in respect of amount to be brought into india. since an amount of rs. 29,48,843 was not received till the time of extension granted and the assessee had claimed the exemption in respect of its total export sales, the assessee was asked by the ao to explain as to why 90 per cent of the aforesaid amount, which worked out to rs. 26,53,959 be not added in taxable profit of the assessee as he had already claimed exemption under section 10b of the act on this amount. since no explanation was furnished the ao made the addition of that amount and also issued a show-cause notice under section 271(1)(c) to the assessee in response to which a written reply was filed but the same did not find favour of the ao as having no force and accordingly levied the penalty of rs. 7,96,200. the said order was assailed in appeal before cit(a) inter alia on the grounds that the return of income was filed on the basis of accounts which were duly audited and the exemption under section 10b was claimed by furnishing the report in form no. 56g r/w rule 16e, and as such there was no concealment of income. it was further stated that the addition made by the ao under section 10b was based on the facts disclosed in the return of income by the assessee. it was contended that uncollected sums were export income from software not approved by the clients so the assessee did not receive the same. cit(a) after considering the submissions of the assessee, held that the concealment of income was not established, therefore, no penalty was leviable. thereafter an appeal was filed by the department before the tribunal and same was also dismissed.4. sri d.d. chopra, senior learned standing counsel for the it department contended with vehemence that in the present appeal, case of revenue has not at all been considered while extending benefit to assessee and as such decision-making process adopted by tribunal is vitiated in law.5. countering the said submission sri s.k. garg, advocate appearing for assessee contended that rightful view has been taken in the matter and as this was case of bona fide mistake and as such rightful orders have been passed.6. after respective arguments have been advanced factual position which is emerging in the present case is that assessee claimed exemption under section 10b of the it act, 1961, on the basis of report of chartered accountant given in form 56g as per rule 16e it rules, 1962. said report dt. 28th oct., 2003 was given by tripathi and jain, chartered accountants. assessee claims that his assessment was bona jidly based on the report given by expert and nothing has been concealed from the department. from the side of revenue it has been stated that extension was granted upto 31st dec, 2003 which was further extended upto 31st march, 2004 in respect of amount to be brought in india and since amount of rs. 29,48,843 was not received till time of extension granted to assessee and as claim of exemption was in respect of total export sale and thus, assessee was well aware of the fact and it is in this background same lacked bona fides and blind reliance cannot be placed on the report of chartered accountant dt. 28th oct., 2003 and in view of such subsequent development exemption was not admissible.7. tribunal has considered the case of the assessee but all these developments which had taken place after report has been given by chartered accountant dt. 28th oct., 2003, i.e., extension of time upto 31st dec, 2003 and further extension of time upto 31st march, 2004 in respect of the amount to be brought in india and the fact that amount was not received till extension was granted and exemption was in respect of its total export sale, the said facet of the matter has not at all been dealt with.8. tribunal ought to have adverted to, on the version of revenue authority also instead of proceeding to place reliance on the version of the assessee alone. decision-making process is vitiated.9. consequently, order dt. 12th sept., 2008 passed by tribunal is hereby set aside. matter is remitted back to tribunal to decide afresh in accordance with law preferably within next two months from the date of presentation of certified copy of this order.with the above observations and direction present it appeal is allowed.