(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.4007 OF 1987 Ranchhoddas Mathradas Goculdas ) of Bombay,Indian Inhabitant, ) the Sole Executor of the Estate ) of Late Rukmani Ranchhoddas ) Goculdas the Original ) Petitioner residing at 12, Dr. ) A.P. Rangnekar Marg, ) Bombay-400 07. )..Petitioner Vs. 1.Miss Prachi Sinha, 4th Wealth ) -tax Officer, A-II Ward,Bombay) havingoffice at Aayakar Bhavan) Maharshi Karve Marg, ) Bombay-400 020. ) 2.Union of India )..Respondents Mr. B.D. Damodar i/b. Kanga & Co., for the petitioner. None for the Respondents. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & J.H. BHATIA, JJ. J.H. BHATIA, JJ. J.H. BHATIA, JJ. DATED: 20th April, 2009 DATED: 20th April, 2009 DATED: 20th April, 2009 ORAL JUDGMENT (PER J.H.BHATIA, J.) ORAL JUDGMENT (PER J.H.BHATIA, J.) ORAL JUDGMENT (PER J.H.BHATIA, J.) . This petition is against the notice dated 31st March, 1987 whereby the Wealth Tax Officer has issued a notice under Section 17 of the Wealth Tax Act, 1987 on the ground that he has reason to believe that the net wealth chargeable to tax for the assessment year 1978-79 has escaped assessment. . The present petition is by the Sole Executor (-2-) of the estate of Original Petitioner. The Original petitioner on receipt of the notice by his communication dated 8th April, 1987 requested for the reasons based on which the notice under Section 17 of the Wealth Tax Act has been issued. Reminder was sent on 8th December, 1987. The petitioner has received no reply. 2. It is the case of the petitioner that the petitioner had filed return of net wealth for the assessment year 1978-79 on 22nd April, 1979. The respondent No.1 completed the assessment of the petitioner for the assessment year 1978-79 by order dated 18th March, 1983 . The assessment was completed by respondent No.1 under Section 16(3) of the Wealth Tax. The petitioner aggrieved by the order passed by the Wealth Tax Officer preferred an appeal to the Commissioner of Wealth Tax (Appeals). By order dated 10th May, 1983 the Commissioner (Appeals) was pleased to allow the Appeal and directed the respondent No.1 to redetermine the value of the shares.. The Revenue aggrieved by the order of the Commissioner (Appeals) preferred an appeal before the ITAT. The learned Counsel informs that the appeal has been dismissed. (-3-) 3. At the hearing of this petition on behalf of the petitioner it is submitted that the notice does not disclose whether it was issued under Section 17(1) (a) or Section 17(1)(b) of the Wealth Tax Act If it is under Section 17(1)(b) the same is bad in law being barred by limitation. Secondly, it is submitted the Wealth Tax Officer (i) must have reason to believe that wealth tax liability escaped assessment and (ii) he must have reason to believe that such escapement of net wealth is by reason of the omission or failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for this assessment for the relevant year. It is also submitted that once assessment has been completed under Section 16(3) the question of respondent No.1 has reason to believe that the net wealth had escaped assessment then Section 17(1)(a) would not arise.Various other contentions have been raised. 3. No reply has been filed by the respondents denying the averments. 4. In the first instance there is no material before us as to whether the notice has been issued under Section 17(1)(a) or 17(1)(b). If it be under Section 17(1)(b) it clearly is barred by limitation. (-4-) 5. Even under Section 17(1)(a) the A.O. while issuing the notice must have formed opinion based on reasons to believe. Though the petitioner has sought the reasons no such material was furnished to the petitioner nor is there any affidavit filed before this court setting out the reasons. Our attention was also invited to the judgment of the Supreme Court in the case of Madhya Pradesh Madhya Pradesh Madhya Pradesh Industries Ltd. vs. I.T.O. (1965) 57 ITR 637 Industries Ltd. vs. I.T.O. (1965) 57 ITR 637 Industries Ltd. vs. I.T.O. (1965) 57 ITR 637 to contend that when there is no counter affidavit filed, the Court has to accept the allegations made in the petition.In our opinion, the absence of any material before us to show what is the reasons to believe for the W.T.O. to issue the notice under Section 17(1) the said notice would be without jurisdiction and consequently liable to be set aside. 7. In the light of the above, Rule made absolute in terms of prayer clause (a). (J.H. BHATIA, J.) (J.H. BHATIA, J.) (J.H. BHATIA, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)