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High Court Of Delhi
DIKSHA SURI - Appellant
Versus
INCOME TAX APPELLATE TRIBUNAL - Respondent
Civil 2799 of 1997
Decided On : 11/05/1997
Held:
The petitioners are at liberty to invoke the Tribunals jurisdiction under Section 256 seeking reference on such questions of law as in their submission arise out of the order dated 27-6-97. They may seek condensation of delay in moving the application also seeking exclusion of time lost in the proceedings before this Court. Such prayer for condensation of limIt ation may be considered by the Tribunal sympathetically.
We cannot resist observing that the petitioners are attempting at riding two horses at a time. They are parallel pursuing the remedy under Section 256 of the Income-tax Act before the Tribunal and under Articles 226/227 of the Constitution before the High Court, agIt ating the very same issues before two different for a simultaneously. They must thank themselves for creating a proverbial situation of riding two horses at a time, and the proverbial result has to follow they must fall. We are constitutionally obliged to deny indulgence in writ jurisdiction to the petitioners on the ground of availability of efficacious alternative remedy to them. By way of abundant caution we place on record that the finding on various questions of law recorded by us in this judgment are for the purpose of holding that the petitioners have an alternative efficacious remedy available under Section 256 of the Act. We do not intend to pre-empt the jurisdiction, of the Tribunal to hear and dispose of the petitioners application under Section 256 on its own merits and taking such view of the facts and law as it may deem fit to take unblessed by any of the findings recorded hereinabove. Subject to this observation the petitions are dismissed though without any order as to costs.
( 1 ) THIS common order shall govern the disposal of 4 civil writ petitions, namely CWP 2796/97, Ms. Deeksha Suri Vs. ITAT, CWP 2797/97 Ms. Divya Suri Vs. ITAT, CWP 2798/97 Sh Lalit Suri Vs. ITAT and CWP 2299/97 Smt Jyotsna Suri Vs. ITAT. The facts of the four cases and the questions arising for decision therein are common, rather the same, except for a minor deviation on facts in the case of Smt. Jyotsna Suri which would be taken note of at its appropriate place.
( 2 ) THE facts in brief, which for the sake of convenience are being stated in the succeeding paragraphs from the record of CWP 2796/97 Ms. Deeksha Suri Vs. ITAT.
( 3 ) ALL the four petitioners are individuals, the status as contemplated by the provisions of the Income- tax Act, 1961 (hereinafter `the Act , for short ). They filed their returns of income as under :-
NAME date of filing income declared Shri Lalit Suri 21/8/1992 rs. 89,490. 00 including salary from Bharat Hotels Ltd. (Rs. 1,13,400. 00 ) Mrs. Jyotsna Suri 28/8/1992 rs. 1,01,460. 00 including salary from Bharat Hotels Ltd. (Rs. 1,15,200. 00 ) Miss Divya Suri 28/8/1992 rs. 91,993. 00 including income from other sources (Rs. 98,993. 00 ) Miss Deeksha Suri 28/8/1992 rs. 80,778. 00 including income from other sources (Rs. 87,777. 00 )
( 4 ) THE assessments were framed on 28/3/95 under Section 143 (3) of the Act. There were additions made under Section 68 of the Act, also keeping in view the provisions of Section 69-A. In their statements of income attached with the returns, the petitioners by way of note indicated the following amounts received and deposited in their accounts in Hong Kong and Shanghai Banking Corporation Ltd. on 22/11/91 under the Remittance of Foreign Exchange and Investment in Foreign Exchange Bonds (Immunities and Exemptions) Act, 1991 and the scheme framed thereunder (hereinafter `the Scheme , for short) which were not income :-
SHRI Lalit Suri us$ 3,00,000. 00 equivalent to Rs. 77,33,952. 00 Mrs. Jyotsna Suri us$ 2,00,000. 00 equivalent to Rs. 51,55,968. 00 Miss Divya Suri us$ 1,50,000. 00 equivalent to Rs. 38,66,976. 00 Miss Deeksha Suri us$ 1,50,000. 00 equivalent to Rs. 38,66,976. 00
( 5 ) THE Assessing Officer issued notices under Sections 143 (2) and 142 (1) and noted that the returns filed by the assesses did not contain any evidence in the form of copy of the declaration to be made before the authorised dealer of foreign exchange as prescribed in the notification GSF No. 594 dated 28/9/91 of the Reserve Bank of India and the return only contained photo copy of the instrument of remittance. He, therefore, called upon the assessees to file copy of the prescribed declaration. The assessees failed to do so inspite of several adjournments sought for the purpose. The AO wrote a letter to the Bank on 13/1/95 asking for a copy of the declaration. The Bank in its reply dated 18/1/95 informed the Assessing Officer that no declaration under the Scheme had been filed. In the opinion of Assessing Officer, the assessee having failed to discharge the burden of proof regarding the source of the remittance, proceeded to treat the receipts as unexplained Cash Credit under Section 68 of the Act.
5. 1by letter dated 21/3/1995 filed before the assessing officer, the petitioners had taken the plea that the amount represented personal gifts. However, it appears that a declaration from Jagat Nanda though undated but attested befor ethe Consulate-General of India, Dubai on 5/2/95 was not filed before the conclusion of the assessment proceedings but the same was filed on 31/3/1995 with the assessing officer of which the assessing officer refused to take notice as the assessment had already stood concluded on 27/3/95 and assessment framed on 28/3/95.
( 6 ) THE assessees went in appeal before the Commissioner of Income Tax (Appeals) contesting the additions made. The submission of the assessees before the Commissioner of Income Tax (Appeals) was that the amount involved did not represent incom
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