9911796707
TMI Blog1982 (9) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... regularly assessed in respect of its income. The karta filed returns for the assessment years 1949-50 and 1950-51 and the assessments for these years were completed under section 23(3) of the Indian Income-tax Act, 1922 on 28-3-1955 and 18-1-1956, respectively. The assessment of income-tax for the assessment years 1951-52, 1952-53, 1953-54, 1954-55 and 1955-56 was completed ex parte under section 23(4) of the 1922 Act on 28-2-1956. It appears that proceedings for recovery of income-tax for the assessment years 1949-50 and 1950-51 was started in January 1956 and house No. 55/110, General Ganj, Kanpur, was attached in January 1956. Smt. Lakshmi Devi, wife of Sri Krishna, karta, filed Suit No. 106/58 in the Court of First Civil Judge, Kanpur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess continued during the years 1975 to 1979, The last order dated 17-8-1979/8-11-1979 was passed by the Commissioner saying that no interference was called for. Thereafter, this writ petition was filed in this Court in February 1980. 3. In the writ petition, several prayers have been made; one prayer is for quashing the recovery proceedings for the assessment years in question, but the assessment years have not been specified. However, the learned counsel for the petitioners has orally submitted that the assessment years involved are 1949-50 to 1955-56. The other prayer is for quashing the order of the Commissioner but no date of the order has been mentioned. Orally, it has been urged that the order is dated 17-8-1979/ 21-11-1979. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad asserted this fact in the affidavit given in support of the petition. The onus lay on the department to prove that such notices of demand were in fact served on the assessee. The respondents had failed to place any material on the record indicating that in fact notices of demand were served on the assessee. The non-availability of the relevant records could not absolve the department from its legal duty and no presumption of service of notices of demand on the assessee could be raised. 7. We have carefully considered the material on the record and the circumstances of the case. It is true that the department has not been able to say positively, in the absence of the relevant records, that the notices of demand in respect of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax assessment order which was passed on 28-3-1955. When the house was attached for recovery of income-tax dues, Suit No. 106/58 was filed by the wife of the karta and some others who were the purchasers of the house under the sale deed of January 1955. Since the wife of the karta was one of the plaintiffs in the suit and the object of the suit was to save the house from the reach of income-tax authorities, it will be fair and reasonable to conclude that the suit was instituted at the instance of the karta with the purpose to save the house. The litigation which continued for 15 years ended in dismissal of the suit. After the conclusion of the civil litigation, when the department proceeded to realize the arrears, the karta came forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in an affidavit which remains uncontroverted, must invariably be accepted as true and reliable. Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability. In view of the special facts and circumstances of this case, we are not inclined to accept the statement of the karta made on oath in the affidavit that the notices of demand in respect of the assessment years in question were not served on him before the commencement of recovery proceedings. As said earlier, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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