TMI Blog1982 (9) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... s four sons. Shri Krishna was the karta of an HUF. The HUF was being regularly assessed in respect of its income. The karta filed returns for the assessment years 1949-50 and 1950-51 and the assessment for these years was completed under s. 23(3) of the Indian I.T. Act, 1922 (briefly " the Act "), on March 28, 1955, and January 18, 1956, respectively. The assessment of income-tax for the assessment years 1951-52, 1952-53, 1953-54. 1954-55 and 1955-56 was completed ex parte under s. 23(4) of the Act on February 28, 1956. It appears that proceedings for recovery of income-tax for the assessment years 1949-50 and 1950-51 was started in January, 1956, and house No. 551110, General Ganj, Kanpur, was attached in January, 1956. Smt. Lakshmi Devi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the karta prayed for inspection of the records and for supply of assessment orders and demand notices. This process continued during the years 1975 to 1979. The last order dated 17-8-1979/8-11-79 was passed by the Commissioner saying that no interference was called for ". Thereafter, this writ petition was filed in this court in February, 1980. In the writ petition several prayers have been made; one prayer is for quashing the recovery proceedings for "the assessment years I in question ", but the assessment years have not been specified. However, the learned counsel for the petitioners has orally submitted that the assessment years involved are 1949-50 to 1955-56. The other prayer is for quashing the order of the Commissioner but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x. The assessee was asserting from the very beginning that he had not received any notice of demand. He had asserted this fact on oath in the affidavit given in support of the petition. The onus lay on the Department to prove that such notices of demand were in fact served on the assessee. The respondents had failed to place any material on the record indicating that in fact notices of demand were served on the assessee. The non-availability of the relevant records could not absolve the Department from its legal duty and no presumption of service of notices of demand on the assessee could be raised. We have carefully considered the material on record and the Circumstances of the case. It is true that the Department has not been able to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous sale deed in favour of his wife and others in January, 1955, most probably in anticipation of the income-tax assessment order which was passed on March 28, 1955. When the house was attached for recovery of income-tax dues, Suit No. 106/58 was filed by the wife of the karta and some others who were the purchasers of the house under the sale deed of January 1955. Since the wife of the karta was one of the plaintiffs in the suit and the object of the suit was to save the house from the reach of the I.T. authorities, it will be fair and reasonable to conclude that the suit was instituted at the instance of the karta with the purpose to save the house. The litigation which continued for 15 years ended in dismissal of the suit. After the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is true and worthy of reliance. It is neither a rule of prudence nor a rule of law that the statements made in an affidavit which remains uncontroverted, must invariably be accepted as true and reliable. Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability. In view of the special facts and circumstances of this case we are not inclined to accept the statement of the karta made on oath in the affidavit that the notices of demand in respect of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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