9911796707
TMI Blog1971 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for the assessment years 1957-58, 1958-59 and 1959-60. Shortly put, the petitioner's case is that he is the karta of a Hindu undivided family, named as " Sagarmall Choudhury and others " (referred to herein as " the family ") which has been or is still being regularly assessed under the Act. The family has income from house properties and rice mill known as " Chowdhury Rice Mill ". For the assessment years 1957-58, 1958-59 and 1959-60, the family has been duly assessed by the respondent No. 3 after verbal discussion with the petitioner. On 19th March, 1965, three notices were issued to Chowdury Rice Mill by the respondent No. 1 for the very same years with a direction to submit returns of income on the ground that the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material particulars before the Income-tax Officer in connection with the assessment for the relevant years. It is alleged that on the insistence of the Income-tax Officer, however, the petitioner had to file returns on 25th February, 1970, and then the case was finally fixed for hearing on 6th March, 1970. Then, in spite of the petitioner's demand for justice the proceedings were not dropped. That is how, in short, the petitioner felt aggrieved and obtained the present rule. The main grievance of the petitioner in this case is that the impugned notices for reopening assessment were issued without jurisdiction as conditions precedent for the issuing of such notices were absent. Since the decision of the Supreme Court in Calcutta Discoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tices for reopening the assessment relate to three years, i.e., 1957-58 to 1959-60. It is stated in paragraph 13 of the affidavit-in-opposition by the Income-tax Officer for himself and on behalf of other respondents that subsequent to the completion of the assessments for those assessment years materials came into his possession that the assessee had certain other businesses of his own in benami names during the relevant years which were not disclosed by the assessee at the time of original assessment for those years. Consequently, it is stated that the income of the said assessee from those businesses escaped assessment on account of omission or failure on the part of the assessee to disclose fully or truly all necessary or material facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e received by the petitioner on 19th March, 1965. Then it appears that on 7th January, 1966, a notice under section 142(1) of the Act was issued fixing the hearing on January 17, 1966. Then again some notices of 18th January, 1968, and 24th January, 1968, fixing fresh dates of hearing were issued but the petitioner did neither file any return nor, as appears from the record, appeared before the Income-tax Officer on any of the dates. Although it is stated in paragraphs 5 and 8 of the petition that the petitioners' representative did not only appear once but on number of occasions and he was given assurance that the proceedings will be dropped, the respondent, however, denied these allegations in the affidavit-in-opposition. Then similar not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs as long as he could. It is, however, argued on behalf of the respondents that although in a proceeding for writ in the nature of mandamus the delay maybe fatal, but it not so in the case of either certiorari or prohibition. In support of this contention reliance is placed on a judgment of K.L. Roy J. in Smt. Suniti Devi Jaipuria v. Income-tax Officer, Matter No. 537 of 1967 (unreported). It appears that in this judgment also the learned judge on facts came to the conclusion that there had been no delay on the part of the petitioner to seek the protection of the court in its writ jurisdiction. It is true that the learned judge on a discussion of two Bombay decisions, Madhaval Sindhoo v. V. R. Idurkar and P. C. Doshi v. 7th Income-tax Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But, in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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