1981 (2) TMI 3 - HC - Income Tax

Summary

Issues Involved:
1. Validity of initiation of acquisition proceedings due to publication of notice in the Official Gazette.
2. Condition precedent for giving individual notice and its timing relative to Gazette publication.
3. Validity of the notice due to ambivalence or indefiniteness.
4. Consequence of failure to communicate reasons and afford inspection on the validity of the proceedings.

Issue-wise Detailed Analysis:

1. Validity of initiation of acquisition proceedings due to publication of notice in the Official Gazette:
The court examined whether the notice under Section 269D of the Income-tax Act, 1961, was validly published in the Official Gazette within the prescribed nine-month period. The petitioners argued that "publication" meant making the Gazette available to the public, not merely printing it. The court agreed, stating that publication implies availability to the public, and mere printing does not suffice. The petitioners provided evidence of their extensive search for the Gazette at various locations, which was unsuccessful until March 18-19, 1974, beyond the nine-month limit. The court concluded that the relevant Gazette was not published within the required period, thus invalidating the initiation of acquisition proceedings.

2. Condition precedent for giving individual notice and its timing relative to Gazette publication:
The court considered whether the individual notice dated November 2, 1973, given before the Gazette publication dated November 10, 1973, was valid. The petitioners contended that the individual notice should follow the Gazette publication. The court, however, determined that while giving individual notices is mandatory, it is not a jurisdictional requirement. The court held that the sequence of individual notice and Gazette publication does not nullify the initiation of proceedings, as the primary requirement is the Gazette publication within the prescribed period.

3. Validity of the notice due to ambivalence or indefiniteness:
The court analyzed the notice's language, which used "and/or" to describe the objects of the transfer, indicating uncertainty about whether the transfer was for tax evasion or concealment of income. The court emphasized that the Competent Authority must have a clear reason to believe that the transfer was for one or both specific objects. The use of "and/or" showed that the Competent Authority had not made up its mind, thus failing to meet the condition precedent for initiating proceedings. The court likened this to penalty proceedings under Section 271 of the Income-tax Act, where the specific ground for penalty must be clear. The court concluded that the notice's ambivalence invalidated the initiation of proceedings.

4. Consequence of failure to communicate reasons and afford inspection on the validity of the proceedings:
The court noted that the petitioners' requests for the reasons recorded by the Competent Authority and inspection of records were denied. The scheme of Chapter XX-A requires objections to be lodged within a specified period, and the denial of reasons and inspection impaired the petitioners' ability to make effective representations. The court held that the failure to communicate reasons and afford inspection affected the validity of the proceedings, as it deprived the petitioners of a fair opportunity to contest the acquisition.

Conclusion:
The court quashed the acquisition proceedings on the grounds of non-publication of the Gazette notice within the prescribed period, the ambivalence of the notice, and the failure to communicate reasons and afford inspection. The petitions were allowed, and the rule was made absolute without awarding costs to the petitioners.