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Kishori Lal Lakkar Vs. Income-tax Officer, 'A' Ward and Ors. (07.01.1976 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberMatter No. 261 of 1973
Judge
Reported in[1978]113ITR282(Cal)
ActsIncome Tax Act, 1961 - Section 186; ;Constitution of India - Article 226
AppellantKishori Lal Lakkar
Respondentincome-tax Officer, 'A' Ward and Ors.
Excerpt:
- .....the particulars of the existence of nandram jhunjunwalla, the petitioner did not also ask for any personal opportunity to adduce any evidence. in that view of the matter i am unable 'to accept the contention that no reasonable opportunity had been given to the petitioner in this case. it was, lastly, contended that the income-tax officer had acted erroneously in holding that nandram jhunjhunwalla was a non-existent person. it was contended that he had been produced at the time of the original registration. he had not appeared in pursuance of the summons under section 131 of the income-tax act, 1961. the circumstances under which a person alleged to be nandram jhunjhunwalla appeared before the income-tax officer, 'b' ward, dist. v(1), on the 7th march, 1969, had been explained in the.....
Judgment:

Sabyasachi Mukharji, J.

1. This is an application challenging an order passed by the Income-tax Officer cancelling the registration of a firm. The order is dated the 30th March, 1973. The order relates to the assessment year 1964-65. It appears that the firm had been granted registration prior to the relevant year and the firm had filed an application for renewal of the registration and the same was granted at the time of the original assessment which was passed some time in March, 1969. Thereafter, it appears that on the 15th March, 1973, a notice was issued which was to the following effect:

'Subject: Cancellation of registration Under Section 186 of the I.T. Act, 1961--For asst. years 1964-65, 1965-66 and 1966-67.

This is to give you notice that after enquiry it is gathered that there was no genuine firm in existence during the above-mentioned assessment years as one of the partners, Sri Nandram Jhunjhunwalla, is found to be a non-existing person.

Under the circumstances, you are requested to show cause by 23-3-1973 why registration of the firm should not be cancelled for the assessment years 1964-65, 1965-66 and 1966-67?'

The assessec replied to the said notice which is as follows :

'In reply I have been instructed to submit that it is not correct to say that Sri Nandram Jhunjhunwalla was a non-existent person. He had duly appeared before your predecessor on earlier occasions and is on the G.I.R. of the department since 1950 or so and is being regularly assessed since then.

As regards your requisition asking may client to show cause by 23-3-73 as to why the registration should not be cancelled for the years under reference, it is submitted that before attempting a reply I would request you to let me or my clients know your reasons for coming to such a conclusion at an early date.

In the meantime I would request you to kindly allow two weeks' time for the purpose and oblige.

Thanking you,'

2. Thereafter, the impugned order was passed. Counsel for the petitioner contended, firstly, that no reasonable opportunity was given to the assessee. It was contended that only seven days' time had been given and the asscssee had prayed for time which was not granted. What is reasonable opportunity depends upon the facts and circumstances of a case. In the instant case the Income-tax Officer gave opportunity of seven days' time. Thereafter, the assessee wrote on the 22nd March, 1973. But the assessce did not produce any evidence even up to the 30th March, 1973, when the impugned order was passed. The petitioner has not stated in the petition what evidence or material the petitioner would have produced if further time was given nor has the petitioner stated what other evidence the petitioner has in possession to rebut the tentative conclusion of the Income-tax Officer. The petitioner has also not stated why he wanted longer time. In the premises, I am unable to accept this contention that no reasonable opportunity had been given to the petitioner. It was, secondly, contended that the notice issued indicated that there was a pre-determined mind. It was submitted that the Income-tax Officer had already come to the conclusion that Nandram Jhunjhunwalla, a person alleged to be a partner of the firm, was a non-existent person. Therefore, the notice did not give reasonable opportunity. I am also unable to accept this contention. The information indicated what was gathered by the Income-tax Officer and thereupon he gave the assessec or the petitioner an opportunity to adduce evidence to rebut that tentative conclusion. The notice in my opinion did not betray any pre-determined mind on this point. It was, thirdly, contended that the impugned order was violative of natural justice and that all the particulars of the information alleged to have been received for the conclusion that Nandram Jhunjhunwalla was a non-existent person had not been given. It is well settled that in matters like this the Income-tax Officer is entitled to make private enquiry but there is sufficient compliance with the principles of natural justice if the gist of the enquiry is conveyed to the person affected by those enquiries before an order affecting the right of the assessee or a person is passed. In this case registration of the firm was sought to be cancelled on the ground that Nandram Jhunjhunwalla alleged to be a partner of the said firm was a non-existent person and the gist of the enquiry had been communicated to the petitioner. The particulars of the enquiry the petitioner could have gathered if the petitioner had appeared at the time of hearing of this case or had showed cause by giving the particulars of the existence of Nandram Jhunjunwalla, The petitioner did not also ask for any personal opportunity to adduce any evidence. In that view of the matter I am unable 'to accept the contention that no reasonable opportunity had been given to the petitioner in this case. It was, lastly, contended that the Income-tax Officer had acted erroneously in holding that Nandram Jhunjhunwalla was a non-existent person. It was contended that he had been produced at the time of the original registration. He had not appeared in pursuance of the summons under Section 131 of the Income-tax Act, 1961. The circumstances under which a person alleged to be Nandram Jhunjhunwalla appeared before the Income-tax Officer, 'B' Ward, Dist. V(1), on the 7th March, 1969, had been explained in the affidavit-in-opposition of Saibal Kumar Dasgupta affirmed on the 4th September, 1973, in answer to the rule nisi. The circumstances revealed that whenever attempts had been made to contact Nandaram by post or otherwise independently by the revenue, these attempts had always failed, but someone was produced by an advocate on behalf of the assessee alleged to be Nandram and tendered as such. It was on the basis of examination of that gentleman that registration had been granted. The facts subsequently revealed that this person was not Nandram Jhunjhunwalla. I am not concerned with the propriety of the finding. I am now concerned only with the question whether there were materials for the Income-tax Officer to come to the conclusion. I am of the opinion that there were such materials. Whether the materials were sufficient or not or whether the appellate authority would have taken the same view or not is a matter on which it is not necessary for me to dilate. It was then contended that Section 186 would only apply to an existing firm. The registration of that firm which had been dissolved could not be cancelled under Section 186 of the Act. I am unable to accept this contention. There is no warrant of such a contention to be accepted in the language of Section 186 of the Act. Counsel for the petitioner drew my attention to Section 189. That section does not deal with this aspect of the matter at all. Lastly, this impugned order is an appealable order under Clause (a) of Section 246 of the Income-tax Act, 1961. No explanation was given in the petition as to why the order was not appealed. For all these reasons I am of the opinion that this application is devoid of any merit and accordingly is dismissed with costs.

3. The rule is, therefore, discharged. Interim order, if any, is vacated. Counsel for the petitioner asked for stay. As I find this application is devoid of any merit, stay as asked for is refused.


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