9911796707
TMI Blog2014 (4) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. Deputy Commissioner of Income Tax, Hyderabad. 3. The petitioner, an individual has been filing his returns in Mumbai. The jurisdiction qua the petitioner is that of the Deputy Commissioner of Income Tax - 15(3) in Mumbai. 4. Respondent No.2 by a notice dated 12.10.2012 informed the petitioner that a search was initiated under section 132 of the said Act in respect of the group companies of Sureshchandra Agarwal and others and that pursuant to the provisions of section 153-C, it was necessary to assess or reassess the petitioner's total income of six assessment years immediately preceding assessment year relevant to the previous year in which search was conducted or requisition made. The petitioner was called upon to furnish the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial and documents seized during the search from the possession of Sureshchandra Agarwal and others. 8. In the impugned order dated 07.03.2013, respondent No.1 apart from recording some of the aforesaid facts merely held as under :- "3. I have carefully considered the submissions of the assessee and found that this is not entirely correct. During the search at the residence of Shri Rajendrakumar in the group Shri Sureshchandra Agarwal, a MOU was found and seized. This MOU referred to sale of property bearing door No.8-2-277 at Banjara Hills, Hyderabad for a consideration of Rs.11,47,50,000/- after paying an advance of Rs.51,00,000/-. The MOU is required to be investigated and as all the group cases are assessed at Hyderabad, I consider i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s property in Hyderabad. There is not even an attempt to explain the relevance or significance of the MOU. He was faced with it for the first time only in the impugned order. The reasons in support of the impugned order were not mentioned in the show cause notice. The petitioner therefore, never had an opportunity of responding to the MOU. 11. Mr.Murlidharan, the learned counsel appearing on behalf of the petitioner rightly submitted that the impugned order is clearly in breach of the principles of natural justice, contrary to the provisions of section 127 and the judgments of this Court. Mr.Murlidharan's submission is supported by the judgment of a Division Bench of this Court dated 05.03.2013 in Writ Petition No.2634 of 2012, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. A show cause notice to be effective must be adequate so to enable a party to effectively object/respond to the same. The authority concerned is obliged to consider the objections, if any, and thereafter reach a finding one way or the other. This alone ensures absence of arbitrary exercise of powers by the authorities. Thus, there has been failure of Audi Alteram Partem Rule and the case of the Petitioner has been transferred in breach of natural justice de hors the non giving of personal hearing to the Petitioner. In that view of the matter also the order dated 2/8/2012 passed by the respondent cannot be sustained." 12. The judgment applies squarely to this case. The petitioner was denied an effective hearing. If the order is pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the petitioner's attention was never invited to it. For instance, he said that the MOU was entered into not between the petitioner and Sureshchandra Agarwal but between the petitioner and one Gill and the MOU was not even acted upon. This was clear from the fact that the petitioner in his income tax and wealth tax returns in the subsequent years had shown the property. The part payments made thereunder were also returned. 15. We however, did not consider it necessary to hear Mr.Murlidharan in respect of the MOU. It was for the authorities to do so. The authorities not having relied upon the MOU, at any stage, cannot now be permitted to rely upon the same. 16. In the circumstances, Rule is made absolute in terms of prayer (a). I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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