Daxa Bipin Dedhia v. Pr. Commissioner Of Income Tax-30 & Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.WRIT PETITION NO. 1824 OF 2019 Daxa Bipin Dedhia..Petitioner Versus Pr. Commissioner of Income Tax-30 & Ors...Respondents ................... Mr. Dharam V. Gandhi a/w Mr. Harsh Kapadia for the Petitioner Mr. Dharam V. Gandhi a/w Mr. Harsh Kapadia for the Petitioner Mr. Sham Walve for the RespondentsMr. Sham Walve for the Respondents ................... CORAM : AKIL KURESHI & S.J. KATHAWALLA, JJ. DATE : AUGUST 5, 2019. P.C.: 1.The petitioner has challenged an order dated 12.3.2019passed by the Commissioner of Income Tax dismissing thepetitioner’s revision petition under Section 264 of the IncomeTax Act, 1961 (“the Act” for short). 2.At the outset, learned counsel for the petitioner statedthat the petitioner had also filed Income Tax Appeal againstthe same order of assessment, however, the same wassubsequently withdrawn. 3.Brief facts are as under:- The petitioner is an individual. For the assessment year2010-11, she had not filed return of income believing thatshe had no taxable income. The Assessing Officer, however,issued notices calling upon her to file the return andproposed to take into scrutiny her transactions during theyear under consideration. It appears that some of thenotices were dispatched to the earlier address of thepetitioner and the subsequent notices were issued shortlybefore the assessment would become time barred. At thelater period, the case of the petitioner is that her husbandwas ill. He was one who was looking after her finance andother affairs. The petitioner, therefore, could not respond tosuch notices. 4.Under such circumstances, the Assessing Officerpassed the order of assessment on 26.12.2017 exparte andheld that the petitioner had total income of Rs. 67,60,000/-during the said year. In the order of assessment, he hasrecorded that the petitioner had purchased two immovableproperties for a total consideration of Rs. 66 Lakhs, the source of which was not disclosed. 5.The petitioner filed Revision Petition before theCommissioner in which she first sought to explain thereasons for non appearance before the Assessing Officer.She pointed out that earlier notices were issued at her Maladaddress which she had changed nearly three years earlier tothe knowledge of the Department. She further pointed outthat her financial and tax matters had been looked after byher husband who recently gone through medical surgery ofhip replacement; he was bedridden and could not attend theoffice of the Assessing Officer. In the context of merits, shepointed out that she had entered into two transactions. Oneis for the sale of immovable property in the nature of flatsold on 19.6.2009 for total consideration of Rs. 30 Lakhs.She was 50% owner thereof and other 50% belonged to herhusband. She has thus received sale consideration of Rs. 15Lakhs from this sale. She had purchased another immovableproperty in the nature of flat on 3.8.2009 for totalconsideration of Rs. 36 Lakhs, again her share being 50%thereof, the remaining 50% having come from her husband. Along with Revision Petition, she also tried to file a returnexplaining these details further. 6. The Commissioner, by the impugned order, heardRevision Petition only on the ground that the assessee wasgranted more than sufficient opportunities despite which shefailed to appear before the Assessing Officer in response toseveral notices. He did not examine the petitioner'scontentions on merits. Along with Revision Petition, she also tried to file a returnexplaining these details further. 6. The Commissioner, by the impugned order, heardRevision Petition only on the ground that the assessee wasgranted more than sufficient opportunities despite which shefailed to appear before the Assessing Officer in response toseveral notices. He did not examine the petitioner'scontentions on merits. 7.Having heard the learned counsel for the parties andhaving perused the documents on record, in view of theconfusion about services of earlier set of notices on thepetitioner's correct address and the reasons cited by her innot being able to respond to the later notices which wereduly served on her on account of her husband's ill health, wewould request the Commissioner to examine her RevisionPetition on merits. It is true that the petitioner not havingparticipated before the Assessing Officer, necessary materialin support of her contentions, could not be verified.Nevertheless, it would not be difficult for the Commissioner to do so while re-examining her Revision Petition. He couldeither call for a remand report and decide this issue himselfor remand the proceedings before the Assessing Officer forfresh assessment. 8. The petitioner's representation that she had neverpurchased two properties as suggested by the AssessingOfficer needs further examination. Her statement that shehad sold one property and purchased another, bothtransactions being jointly done by her and her husbandhaving equal shares, also requires further examination. 9.Under these circumstances, the impugned order dated12.3.2019 passed by the Commissioner is set aside. TheCommissioner is requested to examine the Revision Petitionon merits and disposed of the same in accordance with law. 10. Writ Petition is accordingly disposed of. [ S.J. KATHAWALLA, J. ] [ AKIL KURESHI, J ]