Decided on March 11,1970



K.L.Roy, J. - (1.) By his application under Article 226 the petitioner prays lor writs quashing certain penalty proceedings initiated under Sections 274/271 of the Income-tax Act, 1961, for its alleged failure to comply with the notices under Sections 142(1) and 143(2) of the said Act, and for a further writ quashing a summons purported to have been issued under Section 131 of the said Act by the respondent-Income-tax Officer. The petitioner is a private limited company and for the assessment year 1961-62, it filed its return under Section 22(2) of the Income-tax Act, 1922, on 1st November, 1962. The usual notice under Section 23(2) of the old Act, corresponding to Section 143(2) of the present Act, dated the 12th November, 1962, was served on the petitioner for compliance on the 3rd December, 1962. At the request of the petitioner time for compliance was extended periodically and in the meantime the petitioner's file was transferred to the Income-tax Officer, Companies District III, and a notice under Section 2.3(2) of the old Act read with Section 143(2) of the present Act dated the 11th August, 1965, for compliance on the 23rd August, 1965, was served on the petitioner by the last mentioned Income-tax Officer. Thereafter, the petitioner's case was again transferred to the Income-tax Officer, Central Circle XV, Calcutta, the present respondent to this application. In the meantime the authorised representative of the petitioner appeared before the respondent-Income-tax Officer and his predecessors in compliance with the notice under Section 143(2) and discussions took place between the said authorised representative and the respective Income-tax Officers. By a letter dated 6/9th December, 1965, the Income-tax Officer forwarded two notices under Sections 143(2) and 142(1) to the petitioner for compliance on the 13th December, 1965, and in the said letter asked for certain informations to be furnished consisting of fourteen items. The notice under Section 143(2) was in the usual form requiring the petitioner to be present either in person or by a representative duly authorised in writing and to produce or cause to be produced any documents, accounts and other evidence on Which the petitioner might rely in support of the return filed by it. The other notice under Section 142(1) had some very peculiar features. It was addressed to the principal officer of the petitioner and the petitioner was required by that notice to produce or cause to be produced at the office of the respondent-Income-tax Officer, at 4, Hastings Street, Calcutta, on December 13, 1965, at 12 noon accounts or documents specified "below". At the bottom of the page, below a line drawn after the signature of the respondent-Income-tax Officer, the following words appear, viz., particulars of accounts and/or documents, copies of your accounts with Messrs. Ganga Saran & Sons Ltd., Aligarh, for the period from April 1, 1960, to March 31, 1961. Strangely, this part of the notice had been struck out and initialled by somebody, apparently the respondent-Income-tax Officer. There was a further note that failure on the part of the petitioner to comply with the terms of the notice would entail an ex parte assessment and might further entail a penalty or even prosecution. I have myself looked at the original notice and these peculiarities are present in the original. Thereafter, an application for time for compliance was made by the petitioner and was ultimately rejected by the respondent-Income-tax Officer by his letter dated 11/14th February, 1966. Along with that letter the respondent-Income-tax Officer enclosed a notice under Section 274/271 of the present Act for initiating penalty proceedings for failure to comply with the aforesaid notice under Section 142(1). In the last mentioned letter the respondent-Income-tax Officer has made the following curious observation : " Please note that informations which were called for, vide my letter dated 6/9-12-65, were under Section 143(3)."
(2.) This would have an important bearing on certain submissions made by Mr. Gupta on behalf of the department. From the correspondence annexed to the petition it is quite clear that the Income-tax Officer was repeatedly asking the assessee for specific information and the petitioner was trying on various pretexts to avoid complying with the requisitions made by the Income-tax Officer. There can be no doubt that the petitioner's case is wholly without any merit but that would not affect its contention that no penalty proceedings could be initiated in respect of notices which Were not proper notices under Section 142(1).
(3.) By a summons under Section 131 of the 1961 Act. dated the 17th February, 1966, the respondent-Income-tax Officer required the petitioner, inter alia, to produce its books of accounts or documents for the financial years ending on 31st March, 1949, 31st March, 1950, 31st March, 1951, and 31st March, 1952, respectively, on the 22nd February, 1966. This is the summons which is impugned in the second part of the application.;

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