Dbs Corporate Services Pvt. Ltd v. Sujata Pant, Deputy Commissioner Ofincome Tax & Ors

mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1512 of 1990 DBS Corporate Services Pvt. Ltd. ...Petitioners Vs. Sujata Pant, Deputy Commissioner ofIncome Tax & Ors. ...Respondents Mr. P.J. Pardiwala, Senior Counsel with Mr. Jitendra Jain and Mr. B.D. Damodar i/b. Kanga & Co., for the PetitionersMr. P.S. Sahadevan, for the respondents. CORAM : F.I. REBELLO & D.G. KARNIK, JJ. DATED : 5TH OCTOBER, 2009 P.C. The petitioner by the present petition seeks to impugn the notices dated 5[th ]February, 1990, 30[th] January, 1990 and 30[th] January, 1990 in respect of assessment years 1987-88, 1988-89 and 1989-90. 2.One of the contentions as raised on behalf of the petitioner relying on the second proviso to Section 17 of the Wealth Tax Act, 1957 is that before issuing the notice the Assessing Officer has to record reasons for doing so. In the instant case, it is submitted that the Assessing Officer has not done so and accordingly it is submitted that the notices issued are without jurisdiction. 3.No reply has been filed on behalf of the respondents nor though time was taken have the reasons been produced for consideration of this Court or made available to the petitioners herein. 4.Considering similar language under the Gift Tax Act another co-ordinate Bench of this Court in Byramji Jeejeebhoy and Co. Ltd. vs. Gift-tax Officer and Anr., 259 ITR 647, has held that if a notice is issued if the existence of the facts is challenged by the assessee before the Court on oath, the Authority is bound to disclose the reasons to satisfy the Court about the existence of the reasons for exercise of jurisdiction. 5.In the instant case the only plea raised on behalf of the respondents is that the records are not available. The matter is of the year 1990. The matter was adjourned to enable the respondents to trace the records and make them available. In the order of September, 14, 2009 noting the contention of the petitioner specifically to the second proviso the respondents were directed to produce the copy of the reasons as existence of reasons is a sin qua non for exercise of jurisdiction. On behalf of the respondents learned Counsel states that the records are not available. 6.As pointed out earlier, the A.O. could have issued the notice if the reasons existed. The reasons which have to exist have to be germane for assumption of jurisdiction. In the absence of the respondents producing the reasons it is not possible for this Court to ascertain whether in fact the reasons existed for reopening the proceedings. 7.In the light of that petition will have to be allowed. Rule made absolute in terms of prayer clause (c). (D.G. KARNIK,J.) (F.I. REBELLO,J.)