Sterlite Industries (India) Ltd. vs Assistant Commissioner of Income Tax and Another

S.J. Mukhopadhaya, J.—Though the miscellaneous petition is listed for disposal, by consent of learned Counsel appearing for the parties,

writ appeal itself is taken up for disposal.

The appellant-M/s. Sterlite Industries (India) Limited (hereinafter referred to as ""the company"") preferred Writ Petition in W.P. No. 27780 of

2007, Sterlite Industries (India) Ltd. Vs. The Assistant Commissioner of Income Tax and The Deputy Commissioner of Income Tax, challenging

the notice dated March 27, 2007, issued by the second respondent-Deputy Commissioner of Income Tax, Company Circle VI(4), Chennai-34,

u/s 148 of the Income Tax Act, 1961 (for short, ""the Act""), whereby, the second respondent decided to assess/reassess the income/recompute the

loss/depreciation allowance for the assessment year 2000-01, on the ground that the income of the company which was assessed as being

chargeable to tax, escaped assessment within the meaning of Section 147 of the Income Tax Act, 1961 (for short ""the Act"").

Having upheld the said notice dated March 27, 2007, and the letter dated July 17, 2007, passed by the first respondent-Assistant

Commissioner of Income Tax, Company Circle VI(4), Chennai-34, whereunder the reasons for reopening the assessment of the company for the

assessment year 2000-01, have been set out, the learned single judge dismissed the writ petition in question, giving rise to the present writ appeal

by the company. The assessment of the income of the company, relates to the assessment year 2000-01, for which, notice dated March 27, 2007,

u/s 148 of the Act, was issued by the second respondent-Deputy Commissioner of Income Tax to assess/reassess the income, which escaped

assessment within the meaning of Section 147 of the Act, after the expiry of five years from the assessment year 2000-01.

The grievance of the company is that before issuance of the said notice u/s 148 of the Act, the Assessing Officer must have reasons to believe

that because of the omission or failure on the part of the assessee to disclose fully and truly all the material facts, the income has escaped the

assessment within the meaning of Section 147 of the Act, which has not been followed in the present case. The Assessing Officer merely suggested

to the Commissioner of Income Tax that from a report, it appears that the investigation is necessary and he has not formed any belief whatsoever

that the income of the company escaped the assessment u/s 147 of the Act. It was the further case of the company that the Assessing Officer

cannot assume the jurisdiction u/s 147 of the Act only for the purpose of making investigation, without even forming any belief whatsoever that the

income of the company escaped the assessment by reasons of any omission or failure on the part of the company to disclose fully and truly all

material particulars.

Mr. Debi Prasad Pal, learned senior Counsel appearing for the appellant-company submitted that the expression used in Section 147 of the Act

is reason to believe the powers of the Assessing Officer to reopen the assessment, though wide are not plenary, but it cannot be reopened merely

on suspicion or for the purpose of making some enquiries. On the basis of the materials before the Assessing Officer, he has to form a belief that a

particular income escaped from the assessment for the relevant assessment year by reason of any omission or failure on the part of the assessee to

disclose fully and truly all material facts for the relevant assessment year.

The case of the appellant-company is that the Assessing Officer merely suggested to the Commissioner of Income Tax, as it appears from the

report, that investigation is necessary and he has not formed any belief whatsoever that the income of the company had escaped the assessment.

It was further submitted by learned senior Counsel appearing for the appellant-company that the Assessing Officer cannot assume jurisdiction

u/s 147 of the Income Tax Act only for the purpose of making investigation without even forming any belief whatsoever that the income of the

company escaped assessment by reasons of omission or failure on the part of the company to disclose all material particulars.

According to learned senior Counsel appearing for the company, the belief of the Assessing Officer cannot be substituted by the belief formed

by the Commissioner/Chief Commissioner of Income Tax or even by a court of law/statutory forum. The Commissioner of Income Tax has to

either sanction or reject the case of the assessee for reopening/reassessment of the income, on the basis of the reasons recorded by the Assessing

Officer, if it was found that the Assessing Officer has reported that it is a fit case for reassessment/reopening of the income of the assessee. The

Assessing Officer cannot start a roving/fishing investigation by issuing the said notice u/s 148 of the Act and the said provision cannot be treated as

a cloak for starting a roving/fishing investigation.

The other submission of learned senior Counsel appearing for the company is that the Assessing Officer, before issuance of the notice, must

record the reasons for doing so, as the proviso to Section 151(1) of the Income Tax Act, makes it mandatory that after the expiry of four years

from the end of the relevant assessment year, no such notice shall be issued, unless the Chief Commissioner or the Commissioner is satisfied, on

the reasons recorded by the Assessing Officer, that it is a fit case for issuance of such a notice.

Reliance was placed on the following decisions of the Supreme Court and the High Courts:

(i) Madhya Pradesh Industries Ltd. Vs. Income Tax Officer, Special Investigation Circle ''B'', Nagpur, ;

(ii) SMT. KANTAMANI VENKATA SATYAVATHI Vs. Income Tax OFFICER, B-WARD, RAJAHMUNDRY., ;

(iii) Siesta Steel Construction Pvt. Ltd. Vs. K.K. Shikare and others, ; and

(iv) Rina Sen Vs. Commissioner of Income Tax and Others, .

It was further submitted by learned senior Counsel appearing for the company that the Assessing Officer cannot improve upon his reasons

recorded u/s 148(2) of the Income Tax Act while sending his report to the Commissioner/Chief Commissioner of Income Tax for obtaining his

sanction/approval. According to learned senior Counsel, the Commissioner of Income Tax even failed to apply his mind, in view of the specific

case of the Assessing Officer while sending his report that it was a case for investigation and the investigation cannot be started without issuing a

notice u/s 148 of the Act.

According to the respondent-Revenue, the communication from the Enforcement Directorate, which was relied upon by the Assessing Officer,

was not available with the officer at the time of passing the original assessment order, which has been disputed by the company on the ground that

the Assessing Officer who had issued the notice while sending his report to the Commissioner for sanction/approval, has himself stated that the

information regarding the transaction between M/s. Sterlite Industries (I) Ltd. (i.e., SIIL) and Oasis International for fraudulent import of drawings

and designing, was first received from the Income Tax Department in the year 1999 and, therefore, the Assessing Officer in making the original

assessment, had the knowledge of the aforesaid alleged allegation, because, the original assessment was made on March 28, 2003. In spite of such

knowledge, if the Assessing Officer did not pursue the matter any further, he cannot reopen/reassess the assessment u/s 147 of the Act after the

expiry of more than five years from the assessment year 2000-01, as the alleged income has not escaped the assessment by reason of any

omission or failure on the part of the company to disclose fully and truly all material facts.

Learned standing Counsel appearing for the respondent-Revenue, referring to the list of events, submitted that the notice u/s 148 of the Act

was issued on March 27, 2007, calling the appellant-company for filing the ""return"" and in response to the same, the company replied on April 5,

2007, that the ""return"" filed on October 31, 2001, may be treated as the ""return"" filed pursuant to the notice dated March 27, 2007, and the

company further sought for the reasons for reopening/reassessing the assessment of the income of the company.

It is also informed on behalf of the respondent-Revenue that the learned single judge directed to specifically inform as to whether there was any

approval/sanction u/s 151 of the Act and to submit the copies of the documents which were instrumental in initiating the reassessment proceedings

and also to mention the assessment year, and the company was directed to attend the case on the date of hearing and, therefore, their

representative attended the hearing. The letter dated August 31, 2007, containing the extract of the information relied on to initiate the

reassessment proceedings, was placed before the court. The said information was received from the Enforcement Directorate regarding the

transaction that has a bearing on the assessment year 2000-01 and in the said letter, the previous sanction of the Commissioner of Income Tax was

taken as per Section 151 of the Act.

Learned standing Counsel appearing for the respondent-Revenue relied on the decision of the Supreme Court reported in GKN Driveshafts

(India) Ltd. v. ITO [2003] 259 ITR 19, wherein the Supreme Court, while dismissing the assessee''s appeal, held as follows (page 20 of 259

ITR):

We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice u/s 148 of the Income Tax Act is

issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer

is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the

Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these

proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in

respect of the abovesaid five assessment years.

It was also submitted on behalf of the Revenue that in view of the fact that the reasons for reassessment of the income, have already been

furnished in the present case, the writ petition in question was not maintainable and the dismissal of the writ petition in question by the learned single

judge does not call for any interference.

Reliance was also placed by learned standing Counsel appearing for the Revenue, on the decision of the Kerala High Court reported in G.

Sukesh Vs. Deputy Commissioner of Income Tax, , wherein the Kerala High Court held as follows (page 232 of 252 ITR):

When an assessee makes a declaration of his income, and verifies particularly to its correctness, he has to stand by the same, and cannot object to

the Department pointing out that from the materials collected, there appears to be an error in the returns. The sanctity of a return becomes

susceptible to acid tests when the Assessing Officer stumbles on materials indicating that the returns were not true as is claimed. An opportunity is

given for making a clean breast of affairs, and one need not be apprehensive unless he has skeletons in his cupboard.

Learned standing Counsel appearing for the Revenue also relied upon the decision of the Supreme Court reported in M/s. Phool Chand

Bajrang Lal and another Vs. Income Tax Officer and another, , wherein the Supreme Court held as follows (at page 478 of 203 ITR):

One of the purposes of Section 147 appears to us to be to ensure that a party cannot get away by wilfully making a false or untrue statement at the

time of original assessment and when the falsity comes to notice, to turn around and say ''you accepted my lie, now your hands are tied and you

can do nothing''. It would be a travesty of justice to allow the assessee that latitude.

We have heard learned Counsel appearing for the parties and noticed their rival contentions.

The question required for determination in this case is as to whether the Assessing Officer while issuing notice u/s 148 of the Act, was satisfied

with the conditions that: (i) he had reason to believe that any income had escaped assessment, and (ii) such escapement of income is on account of

any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that year.

For determination of such issues, it is necessary to notice the relevant provisions relating to the income escaping assessment, i.e., Section 147

of the Act, which reads as follows:

Income escaping assessment.- If the Assessing Officer has reason to believe that any 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 and also any other income

chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or

recompute the loss or the depreciation allowance or any other allowance, as the 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 this Section after the expiry of four years from the end of the relevant assessment 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 to make a return u/s 139 or in response

to a notice issued under Sub-section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts necessary for his assessment,

for that assessment year:

Provided further that the Assessing Officer may assess or reassess such income other than the income involving matters which are the subject-

matter of any appeal, reference or revision, which is chargeable to tax and has escaped assessment.

Explanation 1.- Production before the Assessing Officer of account books or other evidence from which material evidence could with due

diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso.

Explanation 2.- For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped

assessment, namely:

(a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of

which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to Income Tax;

(b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that

the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return;

(c) where an assessment has been made, but

(i) income chargeable to tax has been underassessed; or

(ii) such income has been assessed at too low a rate; or

(iii) such income has been made the subject of excessive relief under this Act; or

(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.

Similar question fell for consideration before a Constitution Bench (five-judges) of the Supreme Court reported in Calcutta Discount Company

Limited Vs. Income Tax Officer, Companies District, I and Another, and in the said case, the notice u/s 34 of the Indian Income Tax Act (XI of

1922), which is similar to notice u/s 147 of the Income Tax Act, 1961, was challenged on the ground of jurisdiction, notice having been issued

after the expiry of more than five years from the relevant assessment year. The relevant portion of the judgment reads as follows (page 199 of 41

ITR):

To confer jurisdiction under this Section to issue notice in respect of assessments beyond the period of four years, but within a period of eight

years, from the end of the relevant year two conditions have therefore to be satisfied. The first is that the Income Tax Officer must have reason to

believe that income, profits or gains chargeable to Income Tax have been underassessed. The second is that he must have also reason to believe

that such ''underassessment'' has occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income u/s

22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. Both

these conditions are conditions precedent to be satisfied before the Income Tax Officer could have jurisdiction to issue a notice for the assessment

or reassessment beyond the period of four years, but within the period of eight years, from the end of the year in question.

The aforesaid decision was reiterated by the Supreme Court in the decision reported in The Coca-Cola Export Corporation Vs. Income Tax

Officer and Another, , wherein the Supreme Court observed that, ""We, however, think that it is not necessary for us to refer to any of those

decisions as law is well-settled on the subject starting from Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I

and Another, .

In the decision reported in Union of India and Others Vs. Rai Singh Deb Singh Bist and Another, , the Supreme Court, while dealing with

Section 34(1)(a) of the Indian Income Tax Act, 1922 (now equivalent to Section 147 of the Income Tax Act, 1961), observed as follows (at page

202 of 88 ITR):

Before an Income Tax Officer can issue a statutory notice u/s 34(1)(a), he must have reason to believe that by reason of omission or failure on the

part of an assessee to disclose fully and truly all material facts necessary for his assessment for the years in question, income, profits or gains

chargeable to Income Tax have escaped assessment during those years. Further, before doing so, he must have recorded his reasons for acting u/s

34(1)(a) and the Central Board of Revenue must have been satisfied on those reasons that it is a fit case for the issue of the notice. The recording

of the reasons in support of the belief formed by the Income Tax Officer and the satisfaction of the Central Board of Revenue on the basis of the

reasons recorded by the Income Tax Officer that it is a fit case for issue of notice u/s 34(1)(a) are extremely important circumstances to find out

whether the Income Tax Officer had jurisdiction to proceed u/s 34(1)(a).

In the decision of this court reported in Fenner (India) Ltd. Vs. Deputy Commissioner of Income Tax, , it was held that if the notice has been

issued after the expiry of four years, the Income Tax Officer not only has to form the belief that income has escaped assessment, but also has to

form the belief that income has escaped assessment by reason of any omission or failure committed by the assessee and failure to do so, would

vitiate the notice and the entire proceedings.

The same view has been taken by a Division Bench of the Bombay High Court in the decision reported in Ajanta Pharma Ltd. Vs. Assistant

Commissioner of Income Tax and Others, .

The present case relates to the assessment year 2000-01. From the records, it appears that the second respondent-Deputy Commissioner of

Income Tax, wrote a letter dated March 16, 2007, to the Commissioner of Income Tax requesting to accord approval for reopening the

assessment u/s 147 of the Act for issuing the notice u/s 148 of the Act for the assessment year 2000-01. From the grounds shown therein, it is

important to decide the issue and the relevant portion of the aforesaid letter dated March 16, 2007, is quoted hereunder:

Sub.: Income Tax assessment - Reopening u/s 147 - In the case of M/s. Sterlite Industries (India) Ltd. - Approval by the Commissioner of Income

Tax u/s 151(1) � Proposal - Assessment year 2000-01 - Reg.

Kindly refer to the above.

In this case, the assessment was originally completed u/s 143(3) on March 28, 2003, by the Assistant Commissioner of Income Tax, Circle-

2(3), Mumbai. The total income as per Chapter IV-D as well as u/s 115JA was be ''Nil''.

Subsequently, the case is transferred to this office and now information has been received in this office from the Enforcement Directorate

(through proper channel) that the assessee had given some orders of import but they failed to produce the original bills of entry. The available

information is extracted below.

Transaction between M/s. SIIL and Oasis International (UK) for fraudulent import of drawings and designs�information was first received from

the Income Tax Department in 1999 and Standard Chartered Bank reported in 2002 that SIIL have failed to file the bills of entry for three

remittances totalling USD 70,20,000. The charges have been corroborated by examining the bills of lading from BPT which prove that imports

were not lifted by the party and were auctioned by BPT for a paltry amount of Rs. 150. Statements of employees of M/s. JM Bakshi and Co. and

a CA indirectly corroborate it.

It has come to our notice that Standard Chartered Bank had reported another 10 pending import bills in 2003 pertaining to the period 1992 to

2000 for non-submission of original exchange control copies of bills of entry.

RBI had reported another 39 bills pertaining to BNP Paribas, Scotia Bank, Ceylon Bank, ABN Amro Bank, Canara Bank where SIL had asked

for waiver of submission of original exchange copy of bill of entries as they have submitted CA certificates. These pertain to 1996 to 2001.

As per the information thus received from the Enforcement Directorate it appears that there is every chance of booking inflated expenditure on

account of import. But the transactions relate to the financial year 1992 onwards. Even though, no action is possible for the assessment years up to

the assessment year 1999-2000, action can be initiated u/s 147 for the assessment year 2000-01.

On verification of the assessment order for the assessment year 2000-01 it is seen that this issue had not been considered in the assessment.

In the absence of necessary details from the Enforcement Directorate the amount of concealment, if any, and income that has escaped

assessment cannot be quantified. On the basis of the information available, it appears that the tax effect will be more than Rs. 1 lakh.

Further investigation can be done only if the assessment is reopened u/s 147. However, such reopening is to be done before March 31, 2007,

since the period of six years from the assessment year 2000-01 elapse by this date.

Since an assessment had already been completed u/s 143(3) and also since four years have elapsed from the end of the relevant assessment

year statutory approval of the Commissioner of Income Tax u/s 151(1) of the Income Tax Act is required for reopening the assessment.

The case is accordingly submitted for the kind consideration of the Commissioner of Income Tax with a request to accord kind approval for

reopening the assessment u/s 147 and for issuing the notice u/s 148 for the assessment year 2000-01.

On March 23, 2007, the Commissioner of Income Tax, Chennai-HI, Chennai, on the basis of the reasons recorded by the Assessing Officer,

approved u/s 151(1) of the Act, the issuance of notice u/s 148 of the Act for the assessment year 2000-01 and the Commissioner of Income Tax,

Chennai-III, made the following endorsement:

I am satisfied on the reasons recorded by the Assessing Officer that it is a fit case for issue of notice u/s 148.

Learned senior Counsel appearing for the appellant-company submitted that the reasons recorded by the Assessing Officer is ambiguous and

vague, as nowhere, it was stated that the income escaped assessment due to failure on the part of the assessee to disclose fully and truly all the

material particulars.

On the other hand, learned standing Counsel appearing for the Revenue submitted that the report was received regarding the transaction

between M/s. SIIL (the appellant-company) and M/s. Oasis International (UK) for fraudulent import of drawings and designs and the information

was first received from the Income Tax Department in 1999 and Standard Chartered Bank reported in 2002 that SIIL failed to file the bills of

entry for three remittances totalling USD 70,20,000 and the charges have been corroborated by examining the bills of lading from BPT which

prove that imports were not lifted by the party and were auctioned by BPT for a paltry amount of Rs. 150. It has also been brought to the notice

of the authority that Standard Chartered Bank reported to the authority relating to another 10 pending import bills in 2003 pertaining to the period

1992 to 2000 for non-submission of original exchange control copies of bills of entry.

In the present case, we are not supposed to decide whether there is evidence on record to show that the appellant-company escaped

assessment in the assessment year 2000-01. We are only supposed to notice (i) whether the Assessing Officer has reason to believe that the

income, profits or gains chargeable to Income Tax, have been under assessed, and (ii) whether the Assessing Officer have also a reason to believe

that such underassessment has occurred by reason of either: (a) omission or failure on the part of the assessee to make a return of his income, or

(b) omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year.

From the letter dated March 16, 2007, as quoted above, it is clear that the Assessing Officer had noticed the following facts:

(i) The assessee had given some orders for import, but they failed to produce the original bills of entry.

(ii) So far as the belief of the Assessing Officer that the income, profits and gains chargeable to income, have been underassessed, is concerned, no

specific finding has been given, except a doubt has been raised, by stating that, As per the information thus received from the Enforcement

Directorate it appears that there is every chance of booking inflated expenditure on account of import (emphasis supplied). In the said letter,

nowhere it has been mentioned that (i) the income of the assessee had been underassessed, and (ii) such underassessment has occurred by reason

of either (a) omission or failure on the part of the assessee to make a return of his income, or (b) omission or failure on the part of the assessee to

disclose fully and truly all material facts necessary for its assessment for the year. On the other hand, from paragraph 5 of the said letter dated

March 16, 2007, it appears that the blame of failure has been put on the Department, wherein, it is stated that, ""on verification of the assessment

order for the assessment year 2000-01 it is seen that this issue had not been considered in the assessment"". From paragraph 6 of the very same

letter dated March 16, 2007, it further appears that no definite opinion has been formed on behalf of the Assessing Officer to believe that the

income, profits or gains chargeable to Income Tax, have been underassessed and it is only mentioned in paragraph 6 that, ""in the absence of

necessary details from the Enforcement Directorate the amount of concealment, if any, and income that has escaped assessment cannot be

quantified. On the basis of the information available, it appears that the tax effect will be more than Rs. 1 lakh"". From paragraph 7 of the said letter

dated March 16, 2007, it further appears that, ""further investigation can be done only if the assessment is reopened u/s 147. However, such

reopening is to be done before March 31, 2007, since the period of six years from the assessment year 2000-01 elapse by this date.

From the records, it is clear that the Revenue failed to satisfy that the Assessing Officer had reasons to believe that (i) the income, profits and

gains, chargeable to Income Tax, have been under assessed, and (ii) the Assessing Officer had also reason to believe that such underassessment

had occurred by reason of either (a) omission or failure on the part of the assessee to make a return of his income, or (b) omission or failure on the

part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year. All the aforesaid conditions having been

not satisfied by the Assessing Officer, we hold that the Assessing Officer had no jurisdiction to issue the notice u/s 148 of the Act, relating to the

income escaping assessment u/s 147 of the Act, for the assessment or reassessment beyond the period of four yeas, but within the period of eight

years from the end of the year in question.

The Revenue had taken one of the grounds that the appellant-company had submitted before the Revenue regarding the income escaping

assessment and, therefore, should not have moved before this court. But such submission cannot be accepted, as from the records, it appears that

the company, by its letter dated August 16, 2007, while acknowledging the notice, sought for certain records and by the said letter dated August

16, 2007, the company objected for reopening of the assessment, but the notice u/s 148 of the Act having not been withdrawn by the Revenue,

the company had to move before this court.

Though the aforesaid facts seem to have been brought to the notice of the learned single judge, it appears that the learned single judge, without

discussing the question (s) of law, refused to grant the relief prayed for in the writ petition in question, merely on the basis of the allegations as

made by the Revenue and highlighted before the learned single judge. In this regard, we have already mentioned that this court is not supposed to

satisfy itself as to whether the income, profits or gains chargeable to Income Tax, have been underassessed or such underassessment has occurred

either due to omission or failure on the part of the assessee to make a return of his income or omission or failure on the part of the assessee to

disclose fully and truly all material facts necessary for its assessment for the year. It was for the Assessing Officer/income tax Officer to satisfy

those aspects, but he failed to satisfy those conditions in the present case.

We accordingly set aside the impugned order dated March 12, 2008, passed by the learned single judge in Writ Petition No. 27780 of 2007

and the notice dated March 27, 2007, issued by the second respondent and the consequential proceedings dated July 17, 2007, issued by the first

respondent.

The writ appeal is allowed. But, in the facts and circumstances of the case, there shall be no order as to costs. Miscellaneous Petition No. 1 of

2008 is closed.