JUDGMENT
Shanmugam, J.
The petitioner is a firm carrying on the business of money-lending. This original petition is preferred seeking to quash Exts. P4 and P5 assessment orders and the notices of demand. The petitioner has also prayed for a direction to issue the statutory notice under section 142 (3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
2. This original petition cannot be maintained since the petitioner has an effective statutory remedy of appeal against the assessment orders. That apart, the petitioner had earlier filed O.P. No. 3966 of 1998 challenging the very order of assessment for the years 1995-96 and 1996-97 on the ground that the assessment period is included in the block assessment and, therefore, there cannot be a separate independent assessment. He had also filed O.P. No. 20252 of 1998 against the levy of penalty. By a common judgment dated 6-1-1999, that apart, the, original petitions earlier filed by the petitioner were dismissed. In the above circumstances, the petitioner ought to have raised the only legal contention now raised, namely, violation of the principles of natural justice, even at that time. Hence, the original petition is liable to be dismissed on the principles of res judicata.
3. The main contention of the petitioner is that he was not given an opportunity of being heard in respect of materials gathered on the basis of enquiry under sub-section (2) of section 142. On going through the order, it could be seen that the petitioner was not co-operating with the department and in paragraph 3 of Ext. P5, it is stated that in spite of opportunities given, the petitioner did not co-operate with the department. It could be further seen that the copy of the alleged report was not relied on in the assessment order. The other contention that the sworn statement of the general manager was put against him and that certain evidences which were collected were used against him, can be raised in the appeal. In the assessment order, it is stated as follows :
“When opportunities were given to the assessee to come for hearing and rebut the evidences the explanation given is that no statement has been given by Shri George Varghese. The fact is that Shri George Varghese was not present when the survey under section 133A was conducted. Shri T. G. Alexander came to office and made the statement that Shri George Varghese is not well and admitted to S.U.T. Hospital for check-up. Considering the situation, Shri George Varghese was not confronted with the evidence. Subsequently, whenever the case was posted for hearing the assessee had not co-operated. The evidence regarding charging of interest at the rate of 36 per cent is concrete and overwhelming.”
I am unable to agree with the learned counsel that no opportunity was given. However, in view of the factual situation, the matter can be agitated by the petitioner before the appellate authority on merits.
Hence, no grounds are made out to interfere with the assessment order. Original petition fails and it is, accordingly, dismissed.
OPEN