TMI Blog1979 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ed were unjustified, illegal, arbitrary and against facts and circumstances of the case. 2. Returns were filed on 21st Nov., 1974 in compliance to notices under s. 17(1) of the Act as follows: Asst. yr. Declared taxable wealth 1971-72 1,57,200 1972-73 1,53,200 1973-74 1,62,000 1974-75 1,60,700 Returns were accepted under s. 16(1) of the Act vide orders dated 24th Feb., 1975. Along with completion of the assessments notices under s. 18(2) of the Act were issued to the assessee requiring him to show-cause as to why penalties under s. 18(1)(a) of the Act be not levied as the returns filed were late. Such notices for all the years are dated 24th Feb., 1975. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by registered post and, therefore, should be presumed to have been served; for the assessee the service of such letter was hotly denied. There being dispute in this respect, we informed ourselves that there is no evidence on the WTO's file in the shape of postal receipt, of having even sent the letter by registered post, much less any evidence regarding service of the letter on the assessee as such. 3. Sh. B.S. Gupta, advocate appearing for the assessee, made a two-fold submission. Firstly that the notices dated 24th Feb., 1975 were illegal and vague inasmuch as it was not made clear as to for which default these were issued. Photostat copies of the notices have been given to us and the assessee's contention that they do not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity of being heard was given. He contended that in spite of a clear stand having been taken before the AAC, he simply did not grasp the factual implications, much less appreciate the same. Though Sh. Gupta accepted that notices under s. 18(2) can be issued for defaults under s. 14(1), 14(2) or under s. 17 but ascerted that precise charge should have been indicated and since ultimately the penalties for late filing came to be imposed for default under s. 14(1) the notices issued were vague and, therefore, could not give rise to valid penalties. For such contention, he relied on the Kerala High Court judgment in the case of N.N. Subramania Iyer vs. Union of India anr(1). In the said judgment, it has been held that penalty notices in pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee was given a reasonable opportunity of being heard. Now on the facts before us the letter dated 18th March, 1977 has not even been shown to have been despatched by registered post, much less any evidence of the assessee having been served with the letter as such. 4. For the Revenue, Sh. C.S. Jain very strongly contended that in view the pre-existing facts of the penalty proceedings having been initiated the assessee should not be allowed to take shelter behind the plea that he was not given reasonable hearing opportunity. Sh. Jain submitted that change of incumbent in the office also could not save the assessee because it was the assessee's duty to show cause and having defaulted to appear before the WTO on 15th April, 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 34 of the old Act would stand on different footing than a hearing opportunity to be provided to a tax payer. Gita Devi's case (4) is hundred miles apart from the present case. It shall be setting a strange precedent if we were to hold that in the present case simply because the WTO issued notices on 24th Feb., 1975 which for the first year was served after the hearing date, the assessee should be deemed to have been given reasonable opportunity of being heard in terms of s.18(2) of the Act, in view of the Punjab and Haryana High Court judgment in the case of Ram Saran Das Kapur (3). Therefore, we hold that the assessee was not given any reasonable opportunity of being heard for all the four years under appeal. While holding this, we reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said provisions cannot be said to be disjointly only and mutually exclusively. Therefore, we reject the contention for the assessee that notices under s. 18(2) of the Act were vague because these were issued for default of late filing. The Kerala High Court judgment in the case of N.N. Subramania Iyer(1), in our opinion has no application to the present case. We have not been able to persuade ourselves with the view of the Hon'ble Patna High Court in the case of Bihar Textiles(2) and for the reasons recorded above and with utmost respect we are not inclined to follow the said judgment. We were also addressed arguments that the noted notices were not sent on the address given but since as a fact we are holding that notices dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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