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E.L.J. Rebello and ors. Vs. Commissioner of Agricultural Income-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberCivil Revision Petition Nos. 1775 to 1781 of 1974
Judge
Reported in[1978]115ITR510(KAR); [1978]115ITR510(Karn); 1978(1)KarLJ168
ActsKarnataka Agricultural Income-Tax Act, 1957 - Sections 35
AppellantE.L.J. Rebello and ors.
RespondentCommissioner of Agricultural Income-tax and anr.
Appellant AdvocateS.P. Bhat, Adv.
Respondent AdvocateH.N. Narayan, Adv.
Excerpt:
.....evidence, inasmuch as said power is not conferred expressly on him by act is not tenable. - the assessment of the firm as well as its members in respect of the years 1966-67, 167-68 and 1968-69, were completed by the agrl. 33b would be whether the assessee had reasonable opportunity to make his representative before his assessment was revised by the commissioner and not whether the notice issue satisfied all the requirements attributable to notices under s. 6. on the facts placed before us, we are satisfied that the petitioners in these cases had been given reasonable opportunity by the commissioner before he passed his orders under s. we are satisfied that the petitioners were not at all taken by surprise because the notices clearly set out the reasons for issuing them and the..........eight partners in that firm by name s. b. p. rebello, e. l. j. rebello, j. m. j. rebello and his wife, r. rebello, e. l. j. rebello and his wife, c. m. rebello, s. b. p. rebello and r. t. a. rebello. r. t. a. rebello was the managing partner of that firm. j. m. j. rebello died on january 9, firm consisting of seven surviving members of the firm and three minors who were admitted to the benefits of the partnership. the assessment of the firm as well as its members in respect of the years 1966-67, 167-68 and 1968-69, were completed by the agrl. ito, chickmagalur. on a scrutiny of the said assessment orders, the commr. of agrl. it noticed in the cases of s. b. p. rebello, and his wife, e. a. rebello, j. m. j. and his wife, r. rebello and e. l. j. rebello and his wife, c. m. rebello, until.....
Judgment:

Venkataramaiah, J.

1. Since common questions of law and fact arise for consideration in these petitions under section 55 of the Karnataka Agricultural Income-tax Act, 1957 (hereinafter refered to as 'the Act'), they are disposed of by this common order.

2. There was a firm by name Kuttinkhan Estate, Malandur Post, Chickmagular, which was an assessee under the provisions of the Act. The relevant years of assessment are 1966-67, 1967-68 and 1968-69. Until January 9, 1966, there are eight partners in that firm by name S. B. P. Rebello, E. L. J. Rebello, J. M. J. Rebello and his wife, R. Rebello, E. L. J. Rebello and his wife, C. M. Rebello, S. B. P. Rebello and R. T. A. Rebello. R. T. A. Rebello was the managing partner of that firm. J. M. J. Rebello died on January 9, firm consisting of seven surviving members of the firm and three minors who were admitted to the benefits of the partnership. The assessment of the firm as well as its members in respect of the years 1966-67, 167-68 and 1968-69, were completed by the Agrl. ITO, Chickmagalur. On a scrutiny of the said assessment orders, the Commr. of Agrl. IT noticed in the cases of S. B. P. Rebello, and his wife, E. A. Rebello, J. M. J. and his wife, R. Rebello and E. L. J. Rebello and his wife, C. M. Rebello, until January 9, 1966, and in the case of S. B. P. Rebello and his wife. E. A. Rebello and E. L. J. Rebello and his wife, C. M. Rebello, in respect of the period subsequent to January 10, 1966, in the assessment year 1966-67 and in the assessment years 1967-68 and 1968-69, on account of non-compliance with the provisions of s. 11(2)(a)(i) of the Act, which required the Agrl. ITO while computing the total agricultural income of an individual for purposes of assessment under the Act, to include so much of the agricultural income of a wife of an individual as arises directly or indirectly from the membership of the wife in a firm of which her husband is a partner, that the interest of the revenue had been prejudicially affected. He, therefore, issued a notice under s. 35(1) of the Act which conferred the power of revision on him, addressed to R. T. A. Rebello, the managing partner of the firm, calling upon him to show cause as to why the assessment of the individuals concerned should not be revised. Copies of the said notice were sent to E. A. Rebello, R. Rebello, S. B. P. Rebello, C. M. Rebello and E. L. J. Rebello. The notice set out in detail the reason for taking action under s. 35(1) of the Act. The notices which were dated December 21, 1972, and which called upon them to appear before the Commissioner on January 6, 1973, were received by all the individuals to whom they were addressed. Each one of them wrote a letter dated December 30, 1972, to the Commr. of Agrl. IT requesting him to adjourn the case to a date in February, 1973. On January 8, 1973, the Commissioner sent fresh notices to all of them information them that the cases had been adjourned to January 22, 1973. These notices also were served on all the individuals concerned. Here again, it should be mentioned that the notices were addressed to R. T. A. Rebello and copies of the same were sent to five other persons referred to above. On January 12, 1973, R. T. A. Rebello apparently purporting to act on behalf of himself and S. B. P. Rebello, E. L. J. Rebello and R. Rebello, wrote a letter to the Commr. of Agrl. IT asking for a further adjournment to a date in February, 1973. The adjournment sought for was refused by the Commissioner and that fact was intimated to R. T. A. Rebello through a telegram dated January 20, 1973. On the date of hearing, i.e., January 22, 1973, none of the persons to whom notices had been issued appeared before the Commissioner. The Commissioner proceeded to pass an order under s. 35 of the Act, on the basis of the material available on the record setting aside the orders of assessment in question and directing the Agrl. ITO to make fresh assessments in respect of the assessment years in question, in accordance with the provisions of s. 11(2)(a)(i) of th Act. Aggrived by the said orders of the Commissioners, the petitioners have filed the above petitions questioning its correctness.

3. Two questions of law were formulated by S. P. Bhat in support of these petitions. The first question relates to the validity of notices issued to the petitioners and the second one related to the question whether they had been afforded a reasonable opportunity by the Commissioner before he passed the impugned orders.

4. It was argued that the notices which were issued to the petitioners which alone could constitute the foundation of the proceedings before the Commr. of Agrl. IT being defective in law as much as they were not directly addressed to the individuals assesses concerned but addressed to R. T. A. Rebello, managing partner of the firm, and copies to them, the order passed by the Commissioner were unsustainable in law.

5. In support of the above contention, reliance was placed by S. P. Bhat on the decision of the Supreme Court in CIT v. Kurban Hussain Ibrahimji Mithiborwala : [1971]82ITR821(SC) , which was a case in which s. 34 of the I.T. Act, 1922, arose for consideration. In that case, the ITO having issued a notice stating that he had reason to believe that the income of the assessee for the year ending March 31, 1949, had escaped assessment, proceeded to make a reassessment in respect of the income of the assessment year ending March 31, 1950. The Supreme Court held that it was open to the ITO to make a reassessment in respect of the year 1949-50, when the assessee had been told the action was being taken in respect of the income of the year 1948-49. The case before us bear no analogy to the cases which arose under s. 34 of the I.T. Act, 1922, where it had always been held that the notice alone would be the foundation of any proceedings taken thereunder. The cases before us are cases arising under s. 35(1) of the Act, which is in pari materia with the provisions of 33B of the I.T. Act, 1922. In CIT v. Electro House : [1971]82ITR824(SC) (which is the very next case reported in the said volume), the Supreme Court has explained the difference between s. 34 and s. 33B of the I.T. Act, 1922. While doing so, the Supreme Court has observed that the only question which would arise for consideration under s. 33B would be whether the assessee had reasonable opportunity to make his representative before his assessment was revised by the Commissioner and not whether the notice issue satisfied all the requirements attributable to notices under s. 34 of the I.T. Act, 1922. The observations made by the Supreme Court in the latter case apply with equal force to cases arising under s. 35 of the Act, where again the only question which would arise for consideration is whether the assessee concerned has been given reasonable opportunity to make his representation before his assessment is revised by the Commissioner.

6. On the facts placed before us, we are satisfied that the petitioners in these cases had been given reasonable opportunity by the Commissioner before he passed his orders under s. 35 of the Act. If they have not availed of that opportunity, they will have to blame themselves. We are satisfied that the petitioners were not at all taken by surprise because the notices clearly set out the reasons for issuing them and the proposed action. The fact that the notices were addressed to the managing partner of the firm and copies of them were sent to the petitioners is not sufficient to hold that the petitioners had been denied reasonable opportunity on the facts and circumstances of these cases.

7. We are, therefore, of the opinion that both the questions of law urged before us have to be answered against the petitioners. There is no merit in these petitions. They are dismissed with costs.

8. Advocate's fee Rs. 100 in each petition.


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