TMI Blog1986 (10) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... gate Agra on3-2-1982 declaring incomes as stated above. In respect of the assessment year 1979-80 the following entries in the order sheet were made by the ITO before completing assessment : "23-11-1982Issue notice under section 143(2) Sd/-ITO 25-11-1982Shri D.K. Agarwal, CA attends. Copy of trust deed filed. Discussed. Assessed. Sd/- ITO" 2. From the pattern of assessments and the sequence of events, the Commissioner opined that the entries showed that the books of account of the trust were never produced before the ITO which could be scrutinised to check up the correctness of the claims regarding trust income and its activities. The Commissioner also took notice of the fact that no tick marks whatsoever had been made on any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in essential documents and evidence which normally are taken on record for completing assessments, were not there and the ITO did nothing even to complete bare formalities much less process the returns as is required : "Assessee Mahendra Garg (P.) Family Specific Trust, Noorigate, Agra claimed to have come into existence with effect from 17-7-1977 by a trust deed executed by Smt. Premwati wife of Shri Gulab Chand, resident of Church Road, Agra, as settler who set aside a sum of Rs. 500 for the benefit of Smt. Usha Devi wife of Shri Mahendra Garg, son of Shri Sriram, Master Umesh Garg, Master Vikas Garg and Master Navin Garg sons of Shri Mahendra Garg. Shri Mahendra Garg son of Shri Sriram, resident of 15/92, Noorigate,Agraand Smt. Usha De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such notice is important because it is required to be issued only if the ITO is not satisfied about the correctness of the return filed and considers it necessary or expedient to verify the correctness and completeness of the returns by requiring the presence of the assessee or the production of evidence in this behalf. The relevant provision in this regard are contained in clause (b) of sub-section (2) of section 143 as follows : "(2) Where a return has been made under section 139, and (b) whether or not an assessment has been made under sub-section (1), the Income-tax Officer considers it necessary or expedient to verify the correctness and completeness of the return by requiring the presence of the assessee or the production of evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o substantiate his averment of having filed the documents in view of the learned Commissioner's assertion in paragraph 2 of his order, which we have reproduced above, Shri Agarwal stated that such details were filed in other similar cases and, therefore, presumption was in the assessee's favour. He also was not in a position to explain the assessee's stand vis-a-vis, the entries made on 25-11-1982 when the ITO stated that only trust deed copy was filed. In relation to the learned Commissioner's observation that there was no response to the notice served on12-11-1984. Shri Agarwal stated that representation was not made because according to the assessee, the learned Commissioner was sitting with a closed mind and no useful purpose could have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guidance from those orders. 9. For the revenue Shri K.K. Sharma in reply very effectively supported the Commissioner's order and submitted that on the facts there could be no other approach then the one taken by the learned Commissioner. He particularly emphasised that the Commissioner's version that accounts of beneficiaries had not been filed was not even attempted to be controverted for the assessee. 10. In rejoinder Shri Agarwal persisted that copies of capital accounts of the beneficiaries were on the ITO's record. On a query from the Bench Shri Agarwal insisted that there was no rule which provided that if the Commissioner makes wrong statement the assessee must rebut by an affidavit. However, except making bald assertion Shri Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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