M.KATJU, J. - (1.) THIS writ petition has been filed against the order dated 31 -3 -97 passed by the Commissioner Income Tax Agra under Section 273 -A of the Income Tax Act, counter -affidavit and rejoinder -affidavits exchanged and we have heard Counsels for the parties.
(2.) FOR the relevant assessment1 year 1992 -93 the assessee filed return on 31 -8 -92 showing income of Rs. 33,387 but sub ­sequently on 24 -8 -93 he filed revised return showing income of Rs. 70,000. This was on account of a credit Rs. 69,853 in State Bank account of the petitioner on 15 -1 -92 in respect of a bank draft dated 19 -12 -91 of Viyas Bank Ltd. It is alleged that the revised return was filed voluntarily prior to detection by the assessing officer. In respect to the above revised return notice under Section 148 was issued by the Respondent No. 2. Notice under Section 143 (2) was also issued requiring the petitioner to explain various queries in ­cluding genuineness of the amount Rs. 70,000. The queries were based on an enquiry conducted from Viyas Bank and raids conducted under Section 132 in the case of various persons at Bangalore who were alleged involved in arranging such bogus drafts. As yet the assessment has not been completed nor penalty imposed. However, the petitioner filed application under Section 273 -A before the Respon ­dent No. 1 on 18 -8 -93 copy of which is Annexure 1. That application was rejected by the impugned order dated 31 -3 -97 An ­nexure 2 to the writ petition. It is alleged in para 11 of the petition that the impugned order has been passed without proper ap ­plication of mind. In para 12 of the petition it is stated that the petitioner was not given proper opportunity of hearing. A notice dated 11 -3 -97 was issued by the Respon ­dent No. 1 to the petitioner fixing 20 -3 -97 vide Annexure 3 to the petition. The petitioner sent a telegram seeking ad ­journment vide Annexure 4 to the peti ­tion. However, the next date fixed was 26 -3 -97. It is alleged in para 15 of the petition that the petitioner sent medical certificate of his illness but the impugned order was passed ex - parte vide Annexure 5 to the petition. Hence it is alleged that the impugned order is illegal. A counter -affidavit has been filed. In para 5 01 the same it is alleged that assessee has filed a revised return on 24 -8 -1993 after search and statement given by Dr. Krishnappa on 19 -6 -93. Hence it is alleged that the return was filed only after the detection by the department. In the revised return the petitioner has sur ­rendered only Rs. 70,000 for taxation and even now he has not surrendered the com ­mission paid to receive this amount through alleged NRI account, as admitted by Dr. Krishnappa. Hence it is alleged that the disclosure is not voluntary and in good faith and full and true disclosure has not been made. In para 9 of the counter -af ­fidavit it is stated that the petitioner's application for further adjournment was rejected after consideration of the material and documents. In para 12 of the counter -affidavit it is stated that the state ­ment of Dr. Krishnappa was recorded on 29 -6 -1993. As per his statement the asses -see has also paid 32 to 35 commission on the amount in question.
(3.) THE impugned order states that the assessee revised his return of income only after the enquiry from Viyas Bank and the department sent a report from Bangalore where a raid under Section 132 conducted on various persons living in Bangalore who were involved in issuing bogus drafts of various persons. In our opinion this petition deserved to be allowed on the shart ground mentioned in para 18 of the writ petition, that neither the statement of S.N. Ladhani nor the report on enquiries with Viyas Bank Ltd. Bangalore and report from intelligence wing of the department were confronted with the petitioner. The allegation in para 18 of the writ petition has not been denied in the counter - af ­fidavit. What has been stated in para 13 of the counter - affidavit is that the contents of paragraph 18 of the writ petition are matters of record and hence need no reply.;