Case: Rampyari Devi Saraogi Vs. Commissioner of Income Tax, West Bengal, and Others

1958-59 to 1960-61 are erroneous and prejudicial to the interests of revenue, I cancel the said assessments and direct the Income-tax Officer to do fresh assessments according to law, after making proper enquiries and investigation in regard to the jurisdiction, carrying on of the business, possession of initial capital, gifts received and the sources of the moneys invested in the name of the assessee. "The assessee filed a writ petition under article 226 of the Constitution on April 11, 1963, praying, inter alia, that the order dated March 15, 1963, be quashed. The Division Bench overruled the contention of the assessee that she was denied opportunity of showing cause against the grounds and material on which the Commissioner proceeded for the purpose of taking action under section 33B5. In our view, the High Court was right in overruling the contention of the assessee. The order of the Commissioner is a detailed order. There is no doubt that he does mention some facts which were not indicated or communicated to the assessee and which the assessee had had no opportunity of meeting. For instance, in paragraph 9 it is stated : " It has been ascertained that the Income-tax Officer, D Ward, Howrah, had no jurisdiction over the assessee and hence all the assessments made by him are ab initio null and void. It has also been learnt from local enquiries that the assessee never resided nor carried on any business from 7, Haragenj Road, Salkia, Howrah, and that the assessees father-in-law, Shri Sangarmall Saraogi, and his sons have been doing business of foodgrains, besides owning a rice factory and flour grinding machine from 90, Fidder Road, Belgharia, 24-Parganas. " He further observed : " Moreover, the name of the assessee is Rampiyari Devi Saraogi, and as the Income-tax Officer, D Ward, Howrah, who has made the assessments, had only jurisdiction over cases of new assessees, whose names began with the alphabetical letters from S to Z, with a view to camouflage the name and make it appear to fall within the jurisdiction of the Income-tax Officer, the name has been given in the reverse order by putting the surname first and her own name afterwards, as will be apparent from the returns filed. In the return of income for the assessment year 1961-62, the assessee has given her residential address as 90, Feeder Road, Belgharia, Calcutta, while in that for 1962-63, the office address has been given as 90, Feeder Road, Belgharia, Calcutta. He then concluded : " It is apparent that with a view to fall within the jurisdiction of this particular Income-tax Officer, i.e., Income-tax Officer, D-Ward, Howrah, a fictitious address was given and the order of the names reversed. Hence, all the assessments made are without jurisdiction ab initio null and void. " We agree with the High Court that all this material was supporting material and did not constitute the basic grounds on which the orders under section 33B were passed by the Commissioner. There was ample material to show that the Income-tax Officer made the assessments in undue hurry. The assessee was a new assessee and filed voluntary returns in respect of a number of years, i.e., from assessment years 1952-53 to 1960-61. The return for the assessment year 1953-54 is undated. The returns for the assessment years 1952-53 and 1954-55 to 1957-58 are dated March 21, 1961, and those for the assessment years 1958-59 to 1960-61 are dated April 26, 1961. On March 21, 1961, the assessee made a declaration giving the facts regarding initial capital, the ornaments and presents received at the time of marriage, other gifts received from her father-in-law, etc., which should have put any Income-tax Officer on his guard. But the Income-tax Officer without making any enquiries to satisfy himself passed the assessment order on March 30, 1961, for the assessment years 1952-53 to 1957-58, and on April 26, 1961, for the assessment years 1958-59 to 1960-61. No bank account or any proper books of account were maintained by the assessee or produced before the Income-tax Officer. A short stereotyped assessment order was made for each assessment year. As a simple, the Commissioner has reproduced the assessment order for the assessment year 1952-53 in his order. Profit from speculation was shown as Rs. 3, 085 and interest Rs. 600, and Rs. 500 was added for want of books of account and evidence. No evidence whatsoever was produced in respect of the money-lending business done and interest income, shown to have been received by the assessee. No names were given as to the parties to whom the loans were advanced, with amounts and rate of interest and as to when the interest income was receivedIt is not necessary to further detail the reasons given by the Commissioner because on the face of the record the orders were prejudicial to the interest of the revenue, and even if the facts which the Commissioner introduced regarding the enquiries made by him had been indicated to the assessee, the result would have been the same. The assessee, in our view, has not in any way suffered from the failure of the Commissioner to indicate the results of the enquiries, mentioned above. Moreover, the assessee will have full opportunity of showing to the Income-tax Officer whether he had jurisdiction or not and whether the income assessed in the assessment orders which were originally passed was correct or not6. It may be further mentioned that the assessee did not appeal to the Appellate Tribunal against the order passed under section 33B. The reason given by the learned counsel for not filing an appeal was that he could not raise before the Appellate Tribunal the constitutional question which was raised before the High Court and he could not pursue two remedies concurrently. But, in our view, there was nothing to prevent the assessee from filing the appeal and asking the Appellate Tribunal to go only into the question of the lack of opportunity given to the assessee

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. In our view, the High Court was right in overruling the contention of the assessee. The order of the Commissioner is a detailed order. There is no doubt that he does mention some facts which were not indicated or communicated to the assessee and which the assessee had had no opportunity ofagree with the High Court that all this material was supporting material and did not constitute the basic grounds on which the orders under section 33B were passed by the Commissioner. There was ample material to show that theOfficer made the assessments in undue hurry. The assessee was a new assessee and filed voluntary returns in respect of a number of years, i.e., from assessment years1. The return for the assessment yearis undated. The returns for the assessment years55 toare dated March 21, 1961, and those for the assessment years61 are dated April 26, 1961. On March 21, 1961, the assessee made a declaration giving the facts regarding initial capital, the ornaments and presents received at the time of marriage, other gifts received from heretc., which should have put anyOfficer on his guard. But theOfficer without making any enquiries to satisfy himself passed the assessment order on March 30, 1961, for the assessment years8, and on April 26, 1961, for the assessment years1. No bank account or any proper books of account were maintained by the assessee or produced before theOfficer. A short stereotyped assessment order was made for each assessmentassessee, in our view, has not in any way suffered from the failure of the Commissioner to indicate the results of the enquiries, mentioned above. Moreover, the assessee will have full opportunity of showing to theOfficer whether he had jurisdiction or not and whether the income assessed in the assessment orders which were originally passed was correct or not6. It may be further mentioned that the assessee did not appeal to the Appellate Tribunal against the order passed under section 33B. The reason given by the learned counsel for not filing an appeal was that he could not raise before the Appellate Tribunal the constitutional question which was raised before the High Court and he could not pursue two remedies concurrently. But, in our view, there was nothing to prevent the assessee from filing the appeal and asking the Appellate Tribunal to go only into the question of the lack of opportunity given to the assessee