9911796707
TMI Blog2014 (9) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 19th March 1993 passed under Section 144 of the Act for the Assessment Year 1990-91. This despite the Assessment Order dated 19th March 1993, being without jurisdiction, alleges the Petitioner. 2. On 30th November, 1990, Petitioner filed its Return of Income for the Assessment Year 1990-91, declaring a loss of Rs. 4.15 lakhs. In his Return of Income, the Petitioner claimed a loss of Rs. 9.50 lakhs on account of film - 'Shehzaade' produced by him. In his Return of Income, the Petitioner had disclosed his address as "11, Miami, 70, Warden Road, Mumbai 400 026." 3. The Assessing Officer, with a view to complete the assessment, sought to serve notices upon the Petitioner under Section 143(2) of the Act on 3rd May, 1991, 16th Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efused to entertain the Petitioner's Revision Application on the ground that the same was time bound i.e. beyond the period of one year from the date of communication of order dated 19th March, 1991. This is because, the impugned order dated 30th March, 2006 records a finding of fact that the Petitioner was served with a copy of the order dated 19th March, 1993 on 1st April, 1993. In support, a xerox copy of the acknowledgment received from the postal authorities is also annexed to the impugned order dated 30th March, 2006. 7. At the very beginning of his submissions, Mr. Tralshawala, learned Counsel appearing for the Petitioner, invited our attention to the order of this Court passed at the stage of admission on 16th April, 2007 - whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel appearing for the Petitioner in support of the impugned order submits as under:- (a) that the impugned order dated 30th March, 2006 has proceeded on the basis that the Assessment Order dated 19th March, 1993 was served upon the Petitioner in April, 1993.This is fundamental error as according to the Petitioner, he was not available in India during the relevant time as is evident from the fact that the notice for hearing served earlier in 1991 and 1992 on the Petitioner had been returned unserved with the postal remarks 'not known'; (b) the Assessment Order dated 19th March, 1993 was received by the Petitioner only on 5th January, 2004. Therefore, the Revision Application is in time;and (c) in any event, it is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to a Petitioner seeking to invoke writ jurisdiction to indulge in suppresso veri suggesto falsi. The obligation of the Petitioner in approaching the Court for relief under Article 226 of the Constitution of India is to make candid disclosure about all the material facts leading to the Petition. 11. During the course of submissions, the Petitioner drew our attention to the Revision Application filed by the Petitioner before the Commissioner of Income Tax. In that application, it is mentioned that the negative of the film 'Shehzaade' had been attached by the Income Tax Department to recover its dues. However, since the film laboratory where the negative was stored was closing its operations, it had given an advertisement informing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner only on 5th January, 2006. On the above ground alone, the Petitioner is not entitled to any relief. 13. It is also relevant to note that the affidavit in reply dated 7th March, 2007 filed by Mr. K. Mohandas, Assistant Commissioner of Income Tax states as under: - "I say that the impugned assessment order was passed u/s. 144 of the IT Act on 19.03.1993 By the then Asstt. CIT Circle 13 (2), Mumbai. The said assessment order along with notices u/s. 271 (1)(b) and 271 (1) (c) were duly served by the registered post on the assessee's given address at 11, Miami, 70, Warden Road, Mumbai 400 026 hereto annexed and marked Exhibit 1 is the copy of the said acknowledgment. I further say that the original assessment was completed by the ACIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. 15. The aforesaid ground is of no assistance to the Petitioner in the present facts. The Assessment Order dated 19th March, 1993 passed by the Assessing Officer has merged into the impugned order dated 30th March, 2006 of the Commissioner of Income Tax. We find that the issue before the Commissioner of Income Tax was whether or not the Revision Application filed against the order dated 19th March, 1993 was within time. The averments of the Petition before the Commissioner of Income Tax and also before us that he received the order dated 19th March, 1993 only on 5th January, 2004, is in the face of the xerox copy of the postal acknowledgment given by the postal authorities, evidencing the receipt of the order by the Petitioner as fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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