9911796707
TMI Blog1977 (3) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the assessee or the bank), for the assessment years 1950-51 to 1960-61. The assessee filed this writ petition in this court under art. 226 of the Constitution challenging the validity of the various notices issued under s. 148 of the I.T. Act, 1961, for reopening the assessment of the bank for the assessment years 1950-51 to 1960-61. In the said application an affidavit-in-opposition was filed on behalf of the department by one Ranabir Prosad Dobe affirmed by him on the 22nd November, 1965. As the said affidavit, according to the learned trial judge, was of no assistance and did not furnish any material, the learned trial judge gave the department another opportunity of filing a further affidavit. Pursuant to leave granted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial facts. In other words, the learned trial judge was of the opinion that the requirements of s. 147 of the Act were not complied with and the ITO did not have the jurisdiction to issue the notices. The learned trial judge, therefore, made the rule absolute and passed an order quashing the said notices. Against the said order of the learned trial judge, this appeal has been preferred by the department. In the paper book printed by the department in this appeal the affidavit of Sailesh Kumar Chakraborty which was filed before the learned trial judge and which became the subject-matter of comment was not included. In place of the said affidavit of Sailesh Kumar Chakraborty containing the untrue statement for which an apology was tendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or recalling the order of dismissal was that the learned counsel had no authority not to proceed with this appeal. It was further urged that it was the duty of the learned counsel to proceed with this appeal and the dismissal of the appeal on the ground that the same had not been proceeded with has caused the department serious prejudice. On a proper consideration of the said application we recalled the earlier order of dismissal and directed the appeal to be restored to the list and we also gave liberty to the department to file a supplementary paper book containing the affidavit affirmed by Sailesh Kumar Chakraborty which was in fact filed before the learned trial judge. We cannot help observing with regret that the conduct of the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recorded reasons which have been quoted by the learned trial judge in his judgment also do not go to show that there is any material which can lead to the formation of any belief on the part of the ITO that the income of the assessee had escaped assessment in the relevant years because of any failure or omission on the part of the assessee to disclose truly and fully all the material facts. The learned Advocate-General appearing on behalf of the appellant has argued that the fact that the assessee has claimed the very same expenses in respect of which the assessee had claimed deduction in its assessment in India in the respective foreign countries clearly furnishes the necessary material on the basis of which the ITO was entitled to act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handle all bills and documents covering imports into India and transmit letters of credit established by our Indian Branches at the request of the Indian Importers." Further queries were raised by the ITO by his letter dated the 20th March, 1951, which appears at page 35 of the paper book. In this letter the ITO asked for 'details of charges, special charges and legal charges in respect of London and U.S.A. expenses so that their co-relation with the Indian business may be judged '. Further information was given by the assessee. It appears that after discussion a formula was also accepted as to how the computation is to be made. The facts and circumstances clearly go to indicate that there had been no failure on the part of the assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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