Wp/19890/2007 Of Ali Asghar Ceizar v. The Commissioner Of Income-Tax Vi

THE HON'BLE SRI JUSTICE V.V.S.RAOANDTHE HON'BLE SRI JUSTICE RAMESH RANGANATHAN W.P. No.19890 of 2007 ORDER:(Per THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN ) The petitioner seeks to have the order, passed by the 1[st]respondent, dated 30.3.2007 quashed. He also seeks aconsequential direction to declare the assessment order dated28.3.2003, passed by the 2[nd] respondent, as illegal. The petitioner claims to own Ac.2-30 guntas of land inMunicipal Plot No.10 at Banjara Hills, Hyderabad. It is his casethat the aforesaid extent of land was purchased in his name by hisfather by sale deed dated 18.5.1965 which was registered asdocument No.1225 of 1965 in the office of the Sub-Registrar,Khairatabad; soon thereafter he had left India to pursue hiseducation abroad; after completing his studies, he initially workedin Saudi Arabia as a consultant in industrial projects; and had latersettled in Switzerland. The 2[nd] respondent initiated proceedings under Section 147of the Income Tax Act calling upon the petitioner to file his returnof income for the assessment year 1998-99. A notice underSection 148 was issued, thereafter, on 14.5.2002 calling upon himto file his return of income. As the said notices did not elicit anyresponse, a notice under Section 142 was issued and, as the saidnotice was not complied with despite it having been issued thrice, the 2[nd] respondent completed assessment under Section 144 ofthe Income Tax Act and, by assessment order dated 28.3.2003,treated the brokerage of Rs.15.00 lakhs as the petitioner’s incomeassessable to tax under the Income-tax Act. The 2[nd] respondentraised a demand of Rs.11,43,250/- inclusive of interest payable forvarious defaults. The petitioner would submit that he came to know of theassessment order only on 3.1.2005 when it was served on him inSwitzerland and, vide letter dated 14.1.2005, had informed the 2[nd]respondent that he was the owner of the land, and not the broker;and the assessment order was full of fallacies. In reply thereto the2[nd] respondent, by letter dated 25.1.2005, informed the petitionerthat he came to know about his Switzerland address only throughCourt. The petitioner claims that he came to Hyderabad on6.6.2005, but was held up at the airport as his name was enteredin the wanted list; he was produced before the 1[st] respondent; the2[nd] respondent had got a petition under Section 264 of the IncomeTax Act prepared, and had advised him to sign and submit thesame; his land was illegally sold to M/s Nagarjuna ConstructionCompany Ltd; a conspiracy was hatched to knock away theproperty; his brother had impersonated him and had collectedRs.15.00 lakhs and, on coming to know of the fraud played, he hadfiled a suit for declaration of title in O.S.No.32 of 1999. The 1[st] respondent, by order dated 30.3.2007, dismissed therevision petition filed by the petitioner under Section 264 of the Actholding that the onus, of establishing that he was not at Hyderabadon the relevant date, was on the petitioner; he had failed to The 1[st] respondent, by order dated 30.3.2007, dismissed therevision petition filed by the petitioner under Section 264 of the Actholding that the onus, of establishing that he was not at Hyderabadon the relevant date, was on the petitioner; he had failed to discharge the onus; he did not even produce his passport relatingto the period of money transaction during October to December,1997; notices under Sections 148 and 142(1) had been dispatchedtot the petitioner’s last known address i.e., 10-2-247, Asif Nagar,Hyderabad, and the records contain acknowledgment slips; thepetitioner had given his address, in O.S. No.32 of 1998, asH.No.9-4-61/27/A, Toli Chowki, Hyderabad; on enquiry thedepartment came to know that one Sri Rashid Ahmed was residingin the said address for the past 10 years, and was also the ownerof the said premises; the inmates at the Toli Chowki address werenot even aware of the petitioner; in his correspondence,subsequent to his visit to India in 2005, and in his Section 264petition, the petitioner had mentioned his address as C/oMrs.Zehra Sultana, 3-5-855, Hyderguda; his actual address inIndia remained a mystery; and, in this back ground, his claim ofnon-service was devoid of merit. The 1[st] respondent further heldthat, while receipt of the assessment order was acknowledged bythe petitioner on 3.1.2005, he had not filed any appealthereagainst; it is only in June, 2005 that he had filed the petitionunder Section 264; and as such the order of assessment did notnecessitate interference. As noted hereinabove the Section 148 notice was issued tothe petitioner on 14.5.2002; and the assessment order, underSection 144, was passed on 28.3.2003. In the interregnumnotices, under Section 142, are said to have been issued thrice tothe petitioner. It is petitioner’s specific case that neither the notices nor the assessment order were served on him till 3.1.2005. With aview to ascertain whether the petitioner was in India or abroad,during the aforesaid period from 14.5.2002 till 28.3.2003, wedirected the petitioners counsel to produce an authenticated copyof his passport. However, even the unauthenticated copy of thepassport produced before us relates merely to the entries of theyear 2000 and prior thereto, and not for the subsequent period. Despite numerous opportunities being given, no evidence hasbeen placed before this Court in support of the petitioner’s pleathat he was abroad during the said period and, since he was not inIndia, notices sent to different addresses in Hyderabad could nothave been served on him. The onus of establishing that he wasnot in India during the said period, necessitating an inference thatthe notices could not have been served on him, lies on thepetitioner. The petitioner has failed to discharge the onus despiteseveral opportunities being given to him in this regard. The order of the 1[st] respondent, dismissing the revisionpetition on the ground that despite notices and the assessmentorder being served on him, the petitioner did not file the petitionunder Section 264 till June, 2005, does not necessitateinterference in proceedings under Article 226 of the Constitution ofIndia. The Writ Petition fails and is, accordingly, dismissed.However, in the circumstances, without costs. ______________ V.V.S.RAO, J Date: 16.11.2010 ASP ____________________________ RAMESH RANGANATHAN,J