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TMI Blog2013 (8) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... the corresponding assessment years, and for non-compliance of the notices dated 29.6.2005, under Section 142 (1) of the Act dated 17.12.2004. 3. By an interim order dated 3.2.2005, the operations of the impugned assessment orders dated 31.12.2004, and the orders, by which penalties were imposed under Sections 271 (1) (b) and 271 (1) (c) of the Act pertaining to assessment years 1998-99 to 2002-2003, were stayed by this Court. 4. Brief facts giving rise to these writ petitions are that M/s Shivji Palace Hotel and Club (P) Ltd., the petitioner-assessee was registered as a private limited company on 6.5.1997. At the time of its incorporation the company had authorized share capital of Rs.85 lacs divided into 8,50,000 equity shares of Rs.10/- each. Shri Dharam Pal, Shri Sandip Grover, Shri Surjit Singh and Shri Rajinder Kaur were the directors of the company. On 7.11.2001 Shri Harjeet Singh Nalwa and Shri Gurjeet Singh Nalwa purchased 1,50,000 equity shares each constituting 25% of the total paid up capital as on that date. Shri Gurjeet Singh Nalwa further purchased 1,05,000 shares on 4.3.2002 together constituting 37.5% shares of the petitioner as on 4.3.2002. Shri Harjeet Singh Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years 1998-99 to 2002-03 by 31.12.2004, as per the directions issued by the CBDT, no further time could be granted. 9. It is alleged that the books of accounts of the petitioner company were seized under Section 131 (3) of the Act and by letter dated 24.12.2003 of the Assessing Officer informed the company that he has been authorised to retain the documents in his office upto 31.12.2004. 10. The petitioner company filed a Writ Tax No.1827 of 2004 with prayer to quash the notices dated 19.8.2004 (collectively), 27.8.2004 (collectively), 26.8.2004 (collectively) and 13.12.2004 for the assessment years 1998-99 to 2002-03, with further prayers that the respondents be prohibited to proceed in any manner in pursuance to the aforesaid notices. The writ petition was disposed of on 23.12.2004 with following observations/directions:- "Heard learned counsel for the parties and perused the record. Petitioner sole grievance as argued, before us, is that vide letter dated 13.12.2004 written by Assistant Commissioner of Income Tax Circle, Saharanpur (Annexure No.10 to the writ petition the said authority has refused to extend time sought by the petitioner and rejecting the request for supplyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertaining to assessment years 1998-99 to 2002-2003. 14. It is submitted by Shri Dhruv Agarwal, that the impugned assessment order is in the teeth of the order passed by this Court by which the Assessing Officer was required to supply the documents of which the details/particulars may be given by the petitioner. This Court on 23.12.2004 gave two weeks' time to the Assessing Officer to provide photocopies of the documents. The certified copy of the order was filed along with the requests giving details of the documents. The letter/representation dated 29.12.2004 reads as follows:- "Dear Sir, Please find enclosed herewith certified copy of judgment of Hon'ble High Court of Allahabad dated 23rd December, 2004 for your kind reference and records. We once again request you to kindly release us the Books of Accounts of the company along with Bills, Vouchers, other documents etc in terms of your Letter No.F.No.131 (3)/132(8)/ACIT/Circle/SRE/2003-2004 dated 24.12.2003. In addition to the above, you are requested to provide us copies of following documents; (i) Copies of agreement as stated by your goodself between the management and employees of the assessee company for different yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the High Court giving two weeks' time to the Assessing Officer on 23.12.2004 to be operative from the date when the petitioner requested for the copies of the documents and on which the representation was required to be filed within two weeks. Having received the order of the High Court the Assessing Authority could have provided these documents either on the same day or on any other day upto 31.12.2004, before framing the assessment orders. 17. Shri Dhruv Agarwal submits that the Assessing Officer adopted an arbitrary procedure in which he, having possession of accounts books of the petitioner-company, asked to submit reply to the notice of a period prior to the date when the petitioners came to assume the control of the company and made assessment orders without referring to the judgment of the High Court, saddling the petitioner-company with a huge tax liability and thereafter issuing notice under Section 271 (1) (b) and 271 (1) (c) of the Act and in levying penalties, in a wholly unjustified manner. 18. In the connected writ petitions, the petitioner-company has challenged the penalty orders under Sections 271 (1) (b) and 271 (1) (c) on the same grounds in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant paragraph of the letter is quoted as below:- "We request your goodself to kindly give us 10 (ten) days time to produce books of account along with supporting bills etc. since we are making our best efforts to locate them and produce before your goodself." 22. Shri Dhananjay Awasthi states that books of accounts were always with the petitioner, who had produced them before the Trade Tax authorities. Some books were seized from the Ex-Directors of the Company, which were in possession of the Assessing Officer. The petitioner was fully aware of the facts and thus he had made a request on 13.12.2004 to the Commissioner of Income tax to produce these documents on which he was allowed time upto 16.12.2004. Taking advantage of the letter dated 24.12.2003 in which the Assessing Officer informed the petitioner about retention of the books of accounts, the Writ Tax No.1827 of 2004 was filed and in which the final order dated 23.12.2004 was obtained, without giving time to the department and waiting for its reply to bring full and correct facts on record. 23. Shri Dhananjay Awasthi also refers to the letter of the Assistant Commissioner of Income tax, Circle Saharanpur dated 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swering respondents had impounded the books of account and other documents of the petitioner in exercise of the powers under Section 131 (3) of the Income Tax Act, 1961 and which were retained by them as per the permission granted by the Commissioner till 31.12.2004 which is also established by letter dated 24.12.2003 enclosed as Annexure-X as appended to the writ petition. It may be further stated therein that the contents of paragraph 6 of the counter affidavit are highly misleading and are emphatically denied." 26. From the reply given in the counter affidavit, we find that a letter was sent from the office of the Assistant Commissioner of Income Tax, Circle, Saharanpur dated 7.1.2005 to the Directors of the Company, in response to its letter dated 29.12.2004, clearly stating that the contention of the petitioner before the High Court that the original accounts books were seized by the office of the Assessing Officer under Section 131 (3) of the Act to be factually wrong. The original books of accounts were not in possession of the department and therefore, the assessee had asked time to produce the same before the Assessing Officer during the course of assessment proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that the request for supply of the photocopies of some of the documents in possession of the office as well as granting more time for collection and submission of documents vide petitioner's letter dated 9.12.2004 was not acceptable, the reasons thereof were mentioned in the letter dated 13.12.2004 to Shri H.S. Nalwa, Director, after which a final show cause notice was given on 17.12.2004 under Section 144 for completing the assessment fixing 24.12.2004. No one attended the hearing nor any submission was made on that date. A written submission was left at the dak counter of the Office of Income Tax department, on 29.12.2004, which establishes that the assessee was not prepared to discuss the additions proposed to be made in the show cause notice dated 17.12.2004. 29. The submissions of learned counsel appearing for the petitioner are based on the fact that the petitioner-company was not given adequate opportunity of representation in the assessment proceedings as the relevant documents were in possession of the department and were not given to the assessee. The record, however, does not establish the facts on which the arguments are based. The details and relevancy of the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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