PRAKASH TATIA, J. - (1.) : Heard learned counsel for the parties.
(2.) THE petitioner has filed the present writ petition challenging the notice Annexures 11 and 12 issued under the IT Act, 1961. Brief facts of the case are that return of income for the asst. yrs. 1984-85 and 1985-86 were filed on 16th May, 1985 and 19th Dec., 1985 respectively. The assessment orders were passed under s. 143(3) of the Act on 18th Sept., 1985, and (sic) respectively. On 26th Aug., 1987, search was conducted under s. 132(1) of the Act at the premises of petitioner which went on upto 27th Aug., 1987. During the search, statements were recorded by the concerned authorities and on 10th Dec., 1987, order under s. 132(5) of the Act was passed by the assessing authority. In this order, income for the asst. yrs. 1984-85 and 1985-86 were computed. On 15th Feb., 1988, respondents issued notices for asst. yrs. 1984-85 and 1985-86 to the petitioner, copies of which are placed on record as Annexures 11 and 12. The reasons for issuance of notices are placed on record by the counsel for the respondents along with reply which are Annexure R/2 for the year 1984-85 and Annexure R/3 for the year 1985-86. The petitioner requested to supply the reason for reopening of assessment by submitting application on 15th Sept., 1989, and on 25th Sept., 1989. Thereafter, again submitted request on 5th Oct., 1989, for supply of reasons for reopening of assessment. Since the said reasons were not supplied to the petitioner, it appears that petitioner has preferred this writ petition challenging the notices on the ground that the recording of reasons for issuance of notice under s. 148 of the Act is mandatory requirement. According to learned counsel for the petitioner, the petitioner disclosed all the material facts truly and correctly. Not only this the facts are also recorded in the composition (sic- computation) of total income which was submitted by the petitioner as back as in the year 1985. Not only these facts were also considered in the order under s. 132(5) passed by assessing authority on 10th Dec., 1987. Therefore, the very reason for issuance of notices were not in existence. According to learned counsel for the petitioner, even reasons (Annexures R/2 and R/3) which were supplied along with reply to the writ petition for issuance of notice under s. 148 are absolutely void documents as they have been materially altered by the respondents by inserting new facts in the notices which were not available on the day when the reasons alleged to have been recorded. Learned counsel for the petitioner further submits that this Court directed the respondents on 30th July, 1992, to keep the relevant record in Court but the respondents did not choose to produce the original record even before this Court. It is also submitted that on earlier occasion, when the matter was taken up by this Court, learned counsel for the petitioner submitted that respondents have failed to produce the relevant documents despite direction, therefore, an adverse inference may be drawn against the respondents and the notices issued under s. 148 by the respondents deserve to be quashed only on this ground alone. Learned counsel for the petitioner pointed out that even respondents proceeded on absolutely wrong assumption of facts which is clear from the reasons mentioned in Annexures R/2 and R/3. The notice for the year 1984-85 contains reasons that assessee may invest/deposit Rs. 63,860 which was never disclosed to the Department; whereas the said amount in the accounts book has been shown as received by the petitioner by sale of car No. RRT-7053. Learned counsel for the petitioner submits that respondents proceeded on assumption that petitioner did not disclose the investment/deposit of Rs. 5,06,700. According to learned counsel for the petitioner, amount of Rs. 5 lacs shown in above Rs. 5,06,700, on the face of it, it was wrongly included because of the fact that this amount of Rs. 5 lacs has been taken by the assessing authority as of one fixed deposit; whereas in fact FDR was of only Rs. 50,000 and that was already disclosed in the return submitted in the year 1985 itself. The petitioner placed on record the copies of relevant documents including copies of the FDR, in support of his contention. The sum and substance of submissions of the learned counsel for the petitioner is that there was no reason for issuance of notices under s. 48 of the Act because of the reason that petitioner if discloses true and correct statement of income before the assessing authority then there exists no reason for initiation of proceedings under s. 148, secondly the order recording reasons which was placed on record by the respondents along with reply to the writ petition are void documents, cannot be acted upon and cannot be said to be reasons in the eye of law as the said orders have been interpolated to alter the nature of the document by inclusion of reasons which were not in existence when the said reasons were recorded. It is also submitted that in fact even R/2 and R/3 are not only void because of above reason but in fact appear to have been prepared after issuance of notice under s. 148 of the Act of 1961; therefore, also notices under s. 148 of the Act 1961 are void and the authority has no jurisdiction to proceed with the matter.
(3.) LEARNED counsel for the respondents submitted that assessment for the year 1984-85 and 1985- 86 were not reopened merely because of non-disclosure of FDR and receiving of a car but also due to fact that petitioner has spent money in the marriage of his daughter which he had not disclosed earlier. The petitioner also spent his undisclosed income in meeting out his household expenses as well as in constructing the house and there were further more reasons. These expenditure are not disclosed when petitioner's income was assessed and during search these facts came to knowledge of the Department. Learned counsel for the petitioner could not dispute the fact that FDR which was taken into consideration of Rs. 5 lacs while recording the reasons for reopening of assessment for the year 1985-86 was in fact is the FDR of Rs. 50,000 only. It is also relevant to mention here that fact with respect to alleged investment/deposits of amount which petitioner received by sale of car was also disclosed on earlier occasions and petitioner's income was assessed after considering these amounts. So far as other reasons are concerned for holding that income of petitioner escaped the notices because the petitioner did not disclose fully and truly all material facts are written by hand in Annexures R/2 and R/3, the reasons recorded for issuance of notices under s. 148 of the Act. The original record was not produced before this Court despite Court's order dt. 30th July, 1992, and learned counsel for the petitioner relies upon the judgment of Hon'ble apex Court delivered in the case of Union of India vs. Raisingh Deb Singh Bist & Anr. 1973 CTR (SC) 129 : (1973) 88 ITR 200 (SC) wherein the Hon'ble Supreme Court had drawn inference against the Department for non- production of relevant record. I perused the documents placed on record and also considered the arguments advanced by counsel for the parties. It is clear from Annexure 23, FDR of Rs. 50,000 was treated as an FDR of Rs. 5 lacs and FDR was purchased from the funds received from deposits of petitioner with Laxmandas Raghunath Parihar. The respondents in its order (Annexure 9) under s. 132(5) at internal p. 3 gave number of this FDR 249771 dt. 12th Dec., 1984, but against this mentioned Rs. 5 lacs instead of Rs. 50,000. Therefore, it appears that respondents proceeded on assumption that the income of Rs. 5 lacs have not been disclosed by petitioner or it is undisclosed income of petitioner which is factually wrong. ;