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Kunjannamma Philipose Vs. Income-tax Officer, Kottayam Circle. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberO.P. No. 587 of 1959
Reported in[1961]42ITR640(Ker)
AppellantKunjannamma Philipose
Respondentincome-tax Officer, Kottayam Circle.
Cases ReferredDaulatram Rawatmal v. Income
Excerpt:
.....or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - for the respondent the position taken in the counter-affidavit was that the petitioners husband had, during the assessment proceedings for the year 1950-1951, failed to disclose 'fully and truly' the material facts relating to this deposit in his wifes name, and therefore the matter is governed by section 34(1)(a) of the act......exhibit p-7, a notice dated march 25, 1959, issued to the petitioner by the respondent, the income-tax officer, kottayam circle. the assessment proceedings for the assessment year 1950-1951 against the petitioners deceased husband were completed by an order, exhibit p-1, passed on march 15, 1950. on january 11, 1951, the respondent called upon the petitioner to furnish a statement of her wealth, and in compliance, she filed a statement on january 18, 1951, which disclosed an amount of rs. 5,283 in deposit in her name in the palai central bank ltd. the petitioners husband died on february 26, 1951. the first notice under section 34 of the act to the petitioner as the legal representative of her husband was issued on august 23, 1951, but there were no further proceedings pursuant to.....
Judgment:

VELU PILLAI, J. - This is a petition to bring up the records relating to the proceedings under section 34 of the Indian Income-tax Act, 1922 (referred to hereinafter as the Act), for quashing exhibit P-7, a notice dated March 25, 1959, issued to the petitioner by the respondent, the Income-tax Officer, Kottayam Circle. The assessment proceedings for the assessment year 1950-1951 against the petitioners deceased husband were completed by an order, exhibit P-1, passed on March 15, 1950. On January 11, 1951, the respondent called upon the petitioner to furnish a statement of her wealth, and in compliance, she filed a statement on January 18, 1951, which disclosed an amount of Rs. 5,283 in deposit in her name in the Palai Central Bank Ltd. The petitioners husband died on February 26, 1951. The first notice under section 34 of the Act to the petitioner as the legal representative of her husband was issued on August 23, 1951, but there were no further proceedings pursuant to it. A second notice under section 34 was issued to her in the same capacity on June 1, 1955, for the assessment of the sum of Rs. 5,283 as part of her husbands income, and an assessment was made in respect of it by the respondent. The petitioner took the matter on appeal, when by exhibit I order it was held, that the deposit being related to the assessment year 1950-1951, its assessment for the year 1951-1952 was not legal. A third notice was issued to the petitioner also in the same capacity on October 16, 1957, pursuant to which, exhibit P-5, the order of assessment, was made, including the above sum, as part of her husbands income for the assessment year 1950-1951. This time, the assessment was set aside on appeal on the ground, that there was no valid sanction of the Commissioner for the assessment. It was after all this, that exhibit P-7 notice, now impugned, was issued to the petitioner for assessing the aforesaid sum of Rs. 5,283 as part of her husbands income.

The question that arises for determination is, whether the period of eight years is available to the respondent for making the assessment under section 34 of the Act. This will depend on whether the matter falls under section 34(1)(a) or section 34(1)(b) of the Act. For the petitioner it was contended by her learned counsel, that it was in consequence of the information obtained by the respondent from the wealth statement furnished by the petitioner, that he issued the first notice under section 34 and took out proceedings. For the respondent the position taken in the counter-affidavit was that the petitioners husband had, during the assessment proceedings for the year 1950-1951, failed to disclose 'fully and truly' the material facts relating to this deposit in his wifes name, and therefore the matter is governed by section 34(1)(a) of the Act. Obviously, the jurisdiction of the respondent to proceed against the petitioner at this distance of time under section 34 of the Act depends therefore on the decision of the above question of fact. In a proceeding under article 226 this court cannot be called upon to resolve this question, and I do not propose to do so. There is no doubt that there is the significant fact in favour of the petitioner, that the first notice under section 34 was issued within a few months of the petitioners statement disclosing her wealth; but this alone is not conclusive. The learned counsel for the petitioner has also urged that the respondent has already taken the view in previous orders passed, that the matter is governed by section 34(1)(a) of the Act; but they are no longer in force and the matter is now at large. On the authority of Daulatram Rawatmal v. Income-tax Officer, it may be open to the petitioner to call upon the Income-tax Officer to disclose the 'reasons' on which the Income-tax Officer 'believes' that the matter is governed by section 34(1)(a) of the Act, in order that the petitioner may establish before him that that provision does not really apply and in case the Income-tax Officer declines to do so, on the same authority, it may be open to the petitioner to apply to this court under article 226 for compelling such disclosure at least to the court, if not to the petitioner herself; as to this, in the absence of any authority binding on me, and the point not having been argued before me, I do not lay down a rule of law, but only indicate, what perhaps can be done by the petitioner in the light of the decision aforesaid. The petitioner need not therefore be apprehensive that she is entirely without a remedy. Anyhow, the present proceeding before me is not suited for the decision of the question of fact which arises, and which has to be answered, before relief can be granted to the petitioner on this petition. With these observations, this petition is dismissed, but without costs.

Petition dismissed.


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