Allahabad H.C : This writ petition has been filed against the order dt. 31st March, 1997, passed by the CIT, Agra, under s. 273A of the IT Act, 1961.

High Court Of Allahabad

Kanhaiya Lal (HUF) vs. CIT & Anr.

Section 273A

Asst. Year 1992-93

M. Katju & O. Bhatt, JJ.

Civil Misc. Writ Petn. No. 477 of 1997

9th November, 2000

JUDGMENT

M. Katju, J. :

This writ petition has been filed against the order dt. 31st March, 1997, passed by the CIT, Agra, under s. 273A of the IT Act, 1961. Counter-affidavit and rejoinder affidavits exchanged and we have heard counsel for the parties. For the relevant asst. yr. 1992-93, the assessee filed a return on 31st Aug., 1992, showing an income of Rs. 33,387, but subsequently on 24th Aug., 1993, he filed a revised return showing an income of Rs. 70,000. This was on account of a credit Rs. 69,853 in the State Bank account of the petitioner on 15th Jan., 1992, in respect of a bank draft dt. 19th Dec., 1991, of the Viyas Bank Ltd. It is alleged that the revised return was filed voluntarily prior to the detection by the AO. In respect of the above revised return, notice under s. 148 was issued by respondent No. 2. Notice under s. 143(2) was also issued requiring the petitioner to explain various queries including genuineness of the amount Rs. 70,000. The queries were based on an enquiry conducted from the Viyas Bank and raids conducted under s. 132 in the case of various persons at Bangalore who were allegedly involved in arranging such bogus drafts. As yet the assessment has not been completed nor penalty imposed. However, the petitioner filed an application under s. 273A before respondent No. 1 on 18th Aug., 1993, copy of which is Annexure 1. That application was rejected by the impugned order dt. 31st March, 1997, annexure 2 to the writ petition. It is alleged in para 11 of the petition that the impugned order has been passed without proper application of mind. In para 12 of the petition it is stated that the petitioner was no given proper opportunity of hearing. A notice dt. 11th March, 1997, was issued by respondent No. 1 to the petitioner fixing 20th March, 1997, vide Annexure 3 to the petition. The petitioner sent a telegram seeking adjournment vide Annexure 4 to the petition. However, the next date fixed was 26th March, 1997. It is alleged in para. 15 of the petition that the petitioner sent a medical certificate of his illness but the impugned order was passed ex parte vide Annexure 5 to the petition. Hence, it is alleged that the impugned order is illegal.

A counter-affidavit has been filed. In para 5 of the same it is alleged that the assessee has filed a revised return on 24th Aug., 1993, after search and the statement given by Dr. Krishnappa on 19th June, 1993. Hence, it is alleged that the return was filed only after the detection by the Department. In the revised return, the petitioner has surrendered only Rs. 70,000 for taxation and even now he has not surrendered the commission paid to receive this amount through alleged NRI account, as admitted by Dr. Krishnappa. Hence, it is alleged that the disclosure is not voluntary and in good faith and full and true disclosure has not been made. In para 9 of the counter-affidavit it is stated that the petitioner’s application for further adjournment was rejected after consideration of the material and documents. In para 12 of the counter-affidavit it is stated that the statement of Dr. Krishnappa was recorded on 29th June, 1993. As per this statement, the assessee has also paid 32 to 35 (per cent) commission on the amount in question.

The impugned order states that the assessee revised his return of income only after the enquiry from the Viyas Bank and the Department sent a report from Bangalore where a raid under s. 132 conducted on various persons living in Bangalore who were involved in issuing bogus drafts of various persons. In our opinion, this petition deserved to be allowed on the short ground mentioned in para 18 of the writ petition, that neither the statement of S.N. Ladhani nor the report on enquiries, with the Viyas Bank Ltd., Bangalore, and the report from the intelligence wing of the Department were confronted with the petitioner. The allegation in para. 18 of the writ petition has not been denied in the counter-affidavit. What has been stated in para. 13 of the counter-affidavit is that the contents of para 18 of the writ petition are matters of record and hence need no reply.

It is a settled principle of natural justice that whenever any material is proposed to be used against a party copies of the same should be supplied in advance to that party so that he can have an opportunity to explain the same or rebut it. That was evidently not done in this case.

In view of the above we set aside the impugned order dt. 31st March, 1997. The writ petition is allowed but it is open to respondent No. 1 to pass a fresh order after supplying copies of the above-mentioned documents to the petitioner and after giving an opportunity of hearing to him.

[Citation : 247 ITR 686]

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