Ali Asghar Ceizar, V. The Commissioner of Income-Tax VI,

WP/19890/2007

AI Insights

The case involves a petitioner challenging an assessment order and subsequent revision petition dismissal related to income tax assessments on alleged unreported income from brokerage. The petitioner, claiming ownership of a specific land plot, argued that he was wrongfully assessed as a broker due to a conspiracy involving his brother and others, leading to the illegal sale of his property. The income tax department issued several notices to the petitioner, which he claimed were not received until much later, affecting his ability to respond and appeal in a timely manner. The court examined the evidence presented, including the petitioner's passport details and addresses, and found inconsistencies that led to the dismissal of the writ petition.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 695682 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 16-11-2010
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Respondent
• Court: HIGH COURT
• Keywords: Assessment Order; Income Tax; Non-service of notice; Property Dispute; Revision petition
• Section: 147; 148; 144; 264; 142

Judgement Text

"THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN W.P. No.19890 of 2007 ORDER: (Per THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN ) The petitioner seeks to have the order, passed by the 1st respondent, dated 30.3.2007 quashed. He also seeks a consequential direction to declare the assessment order dated 28.3.2003, passed by the 2nd respondent, as illegal. The petitioner claims to own Ac.2-30 guntas of land in Municipal Plot No.10 at Banjara Hills, Hyderabad. It is his case that the aforesaid extent of land was purchased in his name by his father by sale deed dated 18.5.1965 which was registered as document No.1225 of 1965 in the office of the Sub-Registrar, Khairatabad; soon thereafter he had left India to pursue his education abroad; after completing his studies, he initially worked in Saudi Arabia as a consultant in industrial projects; and had later settled in Switzerland. The 2nd respondent initiated proceedings under Section 147 of the Income Tax Act calling upon the petitioner to file his return of income for the assessment year 1998-99. A notice under Section 148 was issued, thereafter, on 14.5.2002 calling upon him to file his return of income. As the said notices did not elicit any response, a notice under Section 142 was issued and, as the said notice was not complied with despite it having been issued thrice, the 2nd respondent completed assessment under Section 144 of the Income Tax Act and, by assessment order dated 28.3.2003, treated the brokerage of Rs.15.00 lakhs as the petitioner’s income assessable to tax under the Income-tax Act. The 2nd respondent raised a demand of Rs.11,43,250/- inclusive of interest payable for various defaults. The petitioner would submit that he came to know of the assessment order only on 3.1.2005 when it was served on him in Switzerland and, vide letter dated 14.1.2005, had informed the 2nd respondent that he was the owner of the land, and not the broker; and the assessment order was full of fallacies. In reply thereto the 2nd respondent, by letter dated 25.1.2005, informed the petitioner that he came to know about his Switzerland address only through Court. The petitioner claims that he came to Hyderabad on 6.6.2005, but was held up at the airport as his name was entered in the wanted list; he was produced before the 1st respondent; the 2nd respondent had got a petition under Section 264 of the Income Tax Act prepared, and had advised him to sign and submit the same; his land was illegally sold to M/s Nagarjuna Construction Company Ltd; a conspiracy was hatched to knock away the property; his brother had impersonated him and had collected Rs.15.00 lakhs and, on coming to know of the fraud played, he had filed a suit for declaration of title in O.S.No.32 of 1999. The 1st respondent, by order dated 30.3.2007, dismissed the revision petition filed by the petitioner under Section 264 of the Act holding that the onus, of establishing that he was not at Hyderabad on the relevant date, was on the petitioner; he had failed to discharge the onus; he did not even produce his passport relating to the period of money transaction during October to December, 1997; notices under Sections 148 and 142(1) had been dispatched tot the petitioner’s last known address i.e., 10-2-247, Asif Nagar, Hyderabad, and the records contain acknowledgment slips; the petitioner had given his address, in O.S. No.32 of 1998, as H.No.9-4-61/27/A, Toli Chowki, Hyderabad; on enquiry the department came to know that one Sri Rashid Ahmed was residing in the said address for the past 10 years, and was also the owner of the said premises; the inmates at the Toli Chowki address were not even aware of the petitioner; in his correspondence, subsequent to his visit to India in 2005, and in his Section 264 petition, the petitioner had mentioned his address as C/o Mrs.Zehra Sultana, 3-5-855, Hyderguda; his actual address in India remained a mystery; and, in this back ground, his claim of non-service was devoid of merit. The 1st respondent further held that, while receipt of the assessment order was acknowledged by the petitioner on 3.1.2005, he had not filed any appeal thereagainst; it is only in June, 2005 that he had filed the petition under Section 264; and as such the order of assessment did not necessitate interference. As noted hereinabove the Section 148 notice was issued to the petitioner on 14.5.2002; and the assessment order, under Section 144, was passed on 28.3.2003. In the interregnum notices, under Section 142, are said to have been issued thrice to the petitioner. It is petitioner’s specific case that neither the notices nor the assessment order were served on him till 3.1.2005. With a view to ascertain whether the petitioner was in India or abroad, during the aforesaid period from 14.5.2002 till 28.3.2003, we directed the petitioners counsel to produce an authenticated copy of his passport. However, even the unauthenticated copy of the passport produced before us relates merely to the entries of the year 2000 and prior thereto, and not for the subsequent period. Despite numerous opportunities being given, no evidence has been placed before this Court in support of the petitioner’s plea that he was abroad during the said period and, since he was not in India, notices sent to different addresses in Hyderabad could not have been served on him. The onus of establishing that he was not in India during the said period, necessitating an inference that the notices could not have been served on him, lies on the petitioner. The petitioner has failed to discharge the onus despite several opportunities being given to him in this regard. The order of the 1st respondent, dismissing the revision petition on the ground that despite notices and the assessment order being served on him, the petitioner did not file the petition under Section 264 till June, 2005, does not necessitate interference in proceedings under Article 226 of the Constitution of India. The Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs. ______________ V.V.S.RAO, J ____________________________ RAMESH RANGANATHAN,J Date: 16.11.2010 ASP "