By TIOL News Service

MUMBAI, SEPT 19, 2014: THE issue before the Bench is - Whether High Court has the discretion not to exercise its judicial review in the writ petition filed by the assessee , when the conduct of the assessee himself is tainted and doubtful. And the verdict goes against the assessee.

Facts of the case

The assessee, a famous Bollywood film producer, filed his Return of Income for the AY 1990-91, declaring a loss on account of film – ' Shehzaade ' produced by him. In his Return of Income, the assessee had disclosed his address in Mumbai. The AO served notices u/s 143(2) on several dates which were returned unserved by the postal authorities. After investigation, it was known that the assessee had settled in Dubai and accordingly, the AO passed a best judgment assessment on 19th March, 1993. The assessee claimed that he came to know of this assessment order in 2003 from the Tax Recovery Officer and obtained a copy of the order on 5th January 2004. In July 2004, the assessee filed a revision application u/s 264 challenging the assessment order with the argument that since the assessment order was received by the assessee in 2004, this application was within the limitation period. The Commissioner vide its order dated 30th March, 2006 had refused the application stating that it was time barred as the assessment order was communicated to the assessee on April 1st 1993 and a xerox copy of the acknowledgment received from the postal authorities was also shown to the assessee . Aggrieved, the assessee filed this writ petition challenging the Commissioner's order in 2006.

The counsel of the assessee submitted that at the stage of admission of the Petition, Revenue was not able to satisfy the Court that the original assessment order dated 19th March, 1993 was served upon the assessee by failing to produce the original copy of the postal acknowledgment. The counsel argued that since the assessee was in Dubai, the notice was never served and the assessee obtained a copy of the assessment order only in 2004.

The the counsel for the Revenue argued that this Court should not exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the order dated 30th March, 2006 in view of the assessee's conduct

Having heard the parties, the High Court held that,

Suppression of facts

++ this submission is not acceptable for the reason that it was an order passed at the stage of admission on a prima facie view. Therefore, at the stage of final hearing, the matter cannot be closed on the basis of observations made at the time of admission. It is incumbent upon the assessee to approach the Court with utmost good faith and make complete disclosure in the Petition while seeking relief from this Court. It is not open to an assessee seeking to invoke writ jurisdiction to indulge in suppresso veri suggesto falsi . The obligation of the assessee in approaching the Court for relief under Article 226 of the Constitution of India is to make candid disclosure about all the material facts leading to the Petition;

++ in the Petition, no mention has been made of when the attachment of the film was done by the Revenue. This attachment would have been fatal to the marketability of the film 'Shehzaade'. Therefore, knowledge of the above attachment could be attributed to the assessee as the film laboratory would be storing the film as agent of the assessee. Besides the aforesaid facts not being stated in the Petition, the assessee also does not mention the fact that the impugned order dated 30th March, 2006 does record that the xerox copy of the postal acknowledgment was attached to the same. In case, the assessee was served with copy of the impugned order without the xerox copy of the acknowledgment card issued by the postal authorities, then in the normal course, a demand for the same would have been made with the Revenue before filing of this Petition. These facts find no mention in the Petition which proceeds impliedly on the basis that the copy of the order dated 19th March, 1993 was received by the assessee only on 5th January, 2006. On the above ground alone, the assessee is not entitled to any relief;

Delays amounts to constructive acceptance

++ a copy of the postal acknowledgment has been annexed to the reply. Assessee has not filed any affidavit in rejoinder, disputing the acknowledgment which has been annexed to the affidavit in reply. However, the Counsel appearing for the assessee did contend before us that the same does not bear assessee's signature though no affidavit in rejoinder disputing the signature has been filed by the assessee. It is only the assessee who can dispute this signature on the postal acknowledgment. Therefore, it is clear that the assessee has chosen not to take any proceeding against the Assessment Order dated 19th March, 1993, after it was served upon him on 1st April, 1993. This delay of close to 11 years in filing the Revision Application itself indicates the fact that the assessee had accepted the Assessment Order dated 19th March, 1993. Therefore, no fault can be found with the impugned order dated 30th March, 2006 passed by the Commissioner of Income Tax;

Conclusion

++ we find that the issue before the Commissioner of Income Tax was whether or not the Revision Application filed against the order dated 19th March, 1993 was within time. The averments of the Petition before the Commissioner of Income Tax and also before us that he received the order dated 19th March, 1993 only on 5th January, 2004, is in the face of the xerox copy of the postal acknowledgment given by the postal authorities, evidencing the receipt of the order by the Petitioner as fast as back 1st April, 1993. Thus, on the face of it, the Revision Application as filed, is hopelessly time barred. Although the Petitioner's submission that the issue of jurisdiction can be raised at any time cannot be disputed, the issue of examining the correctness of the order dated 19th March, 1993 does not arise as the Revision Application fails in the threshold requirement of the time within which it may be filed. The Petitioner before us made much song and dance about the Assessment Order dated 19th March 1993 being passed without any notice being served upon him. The Petitioner after filing his Return of Income for the Assessment Year 1990-91 and giving a particular address therein, makes himself unavailable at that address. Nor does the Petitioner inform the Respondent Revenue of the address where communication relating to his Return of Income for the Assessment Year 1990-91 could be sent. On the aforesaid facts, it comes from the Petitioner that the absence of notice being served upon him, the entire proceedings are bad in law. In exercise of our power of judicial review, we are concerned with the decision making process and if no fault can be found with it, we will not interfere, unless of course the order is perverse. In the present facts, we do not find that the impugned order dated 30th March 2006 of the Commissioner of Income Tax perverse or suffering from any flaw in the decision making process. Besides, we find that the conduct of the Petitioner as pointed at above itself would persuade us from interfering in our writ jurisdiction.

(See 2014-TIOL-1615-HC-MUM-IT)