1. This petition arises out of an assessment made in respect of an abkari business which was being carried on by four persons, including the petitioner before us. This Association of four persons commenced the business on the 7th October 1944but it/appears that the association itself was dissolved after the close of the account year. Notice-under Section 34 of the Act was served after the close of the year and, long after the dissolution on the petitioner sometimes in March 1950. He returned it stating that the business was being managed by one Saliar Rowther and notice should be sent to him as the principal officer of the dissolved association. Thereafter, notice was issued to the said Saliar Rowther.
On behalf of the association several contentions were put forward and there was a final assessment and an appeal was also preferred. In pursuance of the said assessment, a notice of demand was issued against the persons who were members of the association, who as already mentioned, included both Saliar Rowther as well as the petitioner herein. It appears that the said Saliar Rowther paid certain sums amounting to a moiety of the tax levied. For the balance, remaining dus, a demand was made on the petitioner.
It is this demand that led him to file the above petition for the issue of a writ of prohibition, or other appropriate writ, quashing the order of the Second Additional Income tax Officer, First Circle, Madurai making demands for payment of tax from the petitioner as also the levy of penalties for non-payment of the tax, and also preventing the District Collector, Madurai, the second respondent herein, from proceeding to collect the amount demanded from the petitioner.
2. The first point taken in the petition was that as there could be no legal and valid partnership in respect of an abkart business, the assosament itself was illegal. The argument was that the Income-tax Officer had no Jurisdiction to treat an illegal partnership as if it were a legal association. This point is covered by a decision of a Bench of this court in Mohamed Abdul Kareem and Ori, Madurai v. Commissioner of Income-tax Madras, 1948 10 ITR 412: AIR 1949 Mad 509. This objection is overruled.
3. It was next contended on behalf of the Petitioner that there was no valid notice of demand served on him. The defect in the demand dated 18th October 1951 served upon the petitioner is that it was not accompanied by the assessment form as prescribed by Rule 20 of the Income-tax rules with reference to Section 29 of the Act. It is clear to us that what actually happened was that though a printed form with the heading 'Notice of demand under Section 29 of the Income-tax Act, 1922' was used, the department did not consider it to be a notice of demand under that section.
This is evident from the fact that they struck off the paragraph in that form which relates to the filing of an appeal. The petitioner's counsel did not contend that he was entitled to be served with a separate notice of demand which would give him a further right of appeal, though the association itself had filed an appeal which had been finally disposed of.
The petitioner's contention appears to toe merely this: that as a notice purporting to be a notice of demand under Section 29 of the Act was served on him and it does not conform to the requirements of rule 20, it could not form the basis of any proeeedings either for the levy of a penalty, or for the recovery of any tax. There is no substance in this contention.
There has been a valid notice of demand served in accordance with the Act on the association represented by its principal officer. There is no necessity for a further notice of demand under 8. 29 on the petitioner, who was also in law an assessee; vide the definition of 'assessee' in Section 2 (2) of the Act. A communication for the department dated 18th October 1951 which purported to do so, called upon the petitioner to pay the balance still remaining due of the assessment levied on the association.
There was a covering letter mentioning the circumstances in which the notice was served on the petitioner. Learned counsel for the petitioner relied upon the decision of a single Judge of the Calcutta High Court reported in Manindra L. Goswami v. R. N. Bose : 30ITR550(Cal) . But that decision has no bearing on the facts of this case. In that case, there does not appear to have been a notice of demand served, on any one representing the partnership which had been dissolved.
In the absence of any such demand, it was held that proceedings for the recovery of the tax from individual partners without serving even a demand notice on the partners individually were not valid.
4. In the result we are not satisfied that there is any ground on which we can, in the exercise of our powers under Article 226 of the Constitution, quash the order of the Income-tax Officer, making a demand for payment of the balance of the tax due from the petitioner. This writ petition is dismissed with costs -- advocate's fee Rs. 100/-.