9911796707
TMI Blog1969 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany known as S. Lal Co. (Private) Ltd. was incorporated under the Indian Companies Act. The shareholders of the said company were the petitioner, Shiva Lal, and his wife, Smt. Chandrakala Lal, each having 50% of the total shares. Thereafter, the said manganese ore mines and kyanite ore mines in Orissa and Bihar, of which the petitioner was the sole owner as aforesaid, were transferred to the said company for a total consideration of Rs. 29,91,133. After payment of certain amounts to the petitioner by cheque from the company in respect of the said consideration, on April 1, 1959, a sum of Rs. 24,86,633 was shown in the books of the company as a loan from the petitioner. On February 13, 1960, a date which is relevant for the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment year 1960-61 for the alleged purpose of including the capital gains arising out of the exchange of the loan asset for shares in Messrs. S. Lal Co. Private Ltd. It is further stated in the said letter that, at the time of the original assessment, these materials with regard to the alleged exchange of the capital asset, namely, the issue of 5,000 equity shares of Rs. 100 cash from the company in favour of the petitioner were placed before the Income-tax Officer, who made the original assessment and all particulars relating to the petitioner's transaction with Messrs. S. Lal Co. Private Ltd. were also furnished before the said Income-tax Officer and there were verbal discussions also with the client's representative at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graphs 3 and 4 of the said affidavit that the omission or failure to disclose the particulars with regard to capital gains arising out of the exchange of capital assets, namely, the alleged exchange of the loan of Rs. 5,00,000 for shares of the said company of identical value has been made the only ground for re-opening the assessment in the present case. It is contended by Dr. Debi Pal that the petitioner having thrown a specific challenge that these facts were before the original assessing officer, namely, Shri A. K. Jana, and that these facts were fully considered by him, the only person who could really contradict that allegation is Shri Jana himself. He contended that in the absence of any statement on oath before me by Shri Jana tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings. In this state of allegations in the petition, an affidavit in answer was filed and also a second affidavit was filed by the revenue. None of the deponents of the said two affidavits, however, had any personal knowledge of the assessment proceedings for the relevant years. The deponents also did not claim that their informations were derived from the Income-tax Officers of that time, namely, Kazi, Gopinathan and Pradhan, who were the officers who dealt with the cases in course of the regular assessment proceedings. This kind of denial by persons who had no knowledge of the proceedings was strongly commented upon by their Lordships of the Bombay High Court. To the same effect is a decision of this court in the case of Narasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings. In other words, there was no omission or failure to disclose fully and truly the material facts necessary for the purpose of the regular assessment of the petitioner with regard to the alleged exchange of capital asset which is made the ground for reopening the proceedings by the issue of the impugned notice. Hence, I hold that the conditions precedent for the exercise of power in issuing the impugned notice not having been fulfilled in the present case, the notice must be held to be without jurisdiction and void. In the result, this application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall and cancel the notice dated January 19, 1967, issued und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
