VENKAT NAICKEN TRUST Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) AGGRIEVED against the order of the Commissioner of Income-tax in his proceedings C. No. 1121 (107-117)/111 of 1987, dated March 18, 1988, the petitioners have approached this court to quash the said order in relation to the assessment years 1964-65, 1971-72, 1973-74, 1975-76 and 1976-77 completed by the first respondent and direct him to set aside the orders passed by the first respondent on various grounds in Writ Petition No. 4221 of 1989.

(2.) IN Writ Petition No. 4220 of 1989 the petitioners have prayed for a writ of prohibition prohibiting the first respondent from taking any proceedings against the petitioner in respect of arrears under the INcome-tax Act, 1961, or the Wealth-tax Act, 1957, of Venkata Naicken Trust, Randalls Road, Madras-7, in respect of the assessment alleged to have been completed on the Venkata Naicken Trust by the first respondent.

(3.) THERE is no dispute that, now we are concerned with the order passed by the Commissioner of Income-tax with regard to the assessment years 1964-65, 1971-72, 1972-73, 1973-74, 1975-76 and 1976-77. It is the definite case of the assessee that the orders relating to the abovesaid periods were passed without giving an adequate opportunity to them. The Commissioner of Income-tax on the basis of the orders of the Income-tax Appellate Tribunal rightly cancelled the penalty proceedings initiated in respect of the assessment years 1954-55 to 1963-64, 1965-66 to 1970-71. However, coming to the assessment years 1964-65, 1971-72, 1972-73, 1973-74, 1975-76 and 1976-77 without any discussion and after holding that the assessee has not been able to produce any evidence that there was no service of notice refused to interfere with regard to the orders passed in those assessment years and the penalties levied. The said approach of the Commissioner cannot be sustained. When the assessee pleads that he has not been properly served with any notice, it is for the Department to place the relevant material to substantiate their plea that the assessee was served with proper notices. As stated earlier, the impugned order is also not clear. Even learned senior counsel appearing for the Revenue has stated that no penalty proceedings were initiated against the petitioners. In the absence of particulars in the impugned order coupled with the absence of records from the Revenue, I am constrained to accept the argument of learned counsel appearing for the petitioners and consequently quash the order passed by the Commissioner of Income-tax dated March 18, 1988, and remit the matter to him for fresh disposal.