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Commissioner of Income-tax Vs. Ajay Textiles - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberIncome-tax Case No. 88 of 1976
Judge
Reported in[1983]144ITR55(P& H)
ActsIncome Tax Act, 1961 - Sections 186(2), 256(1) and 256(2)
AppellantCommissioner of Income-tax
RespondentAjay Textiles
Appellant Advocate Ashok Bhan and; Ajai Mittal, Advs.
Respondent AdvocateNone
Excerpt:
.....acquire knowledge of passing of the said order. - this contention is well founded and must prevail. there can be no gainsaying that the condition precedent (service of requisite notice) for the cancellation of the registration, had not been satisfied......of the department could not showus a copy of the notice bearing the signatures of a partner of the assessee-firm in token of his service. nor could he produce any acknowledgement or other evidence to prove the service of the notice on the assessee. thus, the mere assertion of the income-tax officer unsupported by any independent evidence, is not sufficient to hold that a notice under section 186(2) was served on the assessee. it is, therefore, plain that the impugned order has not been passed in accordance with law. we, accordingly, cancel the same. '3. the department affer the decision of the tribunal, filed an application under section 256(1) of the act, but the same was rejected by the tribunal, as no question of law arose. we have heard the learned counsel for the petitioner and find.....
Judgment:

Prem Chand Jain, J.

1. The Commissioner of Income-tax through this petition filed under Section 256(2) of the I.T Act, 1961 (hereinafter referred to as ' the Act '), prays for the issuance of a mandamus to the Tribunal, Amritsar Bench, to draw up a statement of the case and refer to this court the following question of law, which arises out of its order dated 29th September, 1975:

' Whether, on the facts and in the circumstances of the case, the Tribunal is correct in holding that the order of the ITO refusing to grant renewal of registration to the firm, was not in accordance with law '

2. The ITO refused to allow renewal of registration for the assessment year 1967-68 to the assessee, vide his order dated 7th March, 1972, which order was upheld in appeal by the AAC. On second appeal, the Tribunal accepted the assessee's claim for renewal of registration and-held as follows:

' Under Section 186(2), the Income-tax Officer can cancel the registration of a firm only after giving a 14 days' notice to the firm. The grievance of the assessee is that no such notice was served on it. This contention is well founded and must prevail. There is absolutely no material on the record to hold that the requisite notice was served on the assessee before cancellation of the registration. On being specifically asked by us the learned representative of the Department could not showus a copy of the notice bearing the signatures of a partner of the assessee-firm in token of his service. Nor could he produce any acknowledgement or other evidence to prove the service of the notice on the assessee. Thus, the mere assertion of the Income-tax Officer unsupported by any independent evidence, is not sufficient to hold that a notice under Section 186(2) was served on the assessee. It is, therefore, plain that the impugned order has not been passed in accordance with law. We, accordingly, cancel the same. '

3. The Department affer the decision of the Tribunal, filed an application under Section 256(1) of the Act, but the same was rejected by the Tribunal, as no question of law arose. We have heard the learned counsel for the petitioner and find no merit in this case. As is evident from the order of the Tribunal, it was only after appraising the entire material on the record that the Tribunal held that 14 days' notice as required under Section 186(2) of the Act, was not served upon the assessee before the cancellation of its registration. It would be pertinent to observe that even before the Tribunal, the Revenue could not satisfy that any notice was served on the assessee. There can be no gainsaying that the condition precedent (service of requisite notice) for the cancellation of the registration, had not been satisfied. The finding of the Tribunal that notice under Section 186(2) of the Act was not served upon the assessee, is a pure finding of fact. The Tribunal rightly declined the application as no question of law arose, for a reference to our decision.

4. In this view of the matter, the prayer made for the issuance of a mandamus directing the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar, to refer the question of law, reproduced in the earlier part of the judgment, is declined and the petition is dismissed. In the circumstances of the case, we make no order as to costs.

D.S. Tewatta, J.

5. I agree.


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