Skip to content


K. Mohammed Hussain, Receiver of Estate of M.D.T. Kumaraswami Mudaliar Vs. Commissioner of Income-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 1951 of 1974
Judge
Reported in[1981]132ITR866(Mad)
ActsIncome Tax Act - Sections 147
AppellantK. Mohammed Hussain, Receiver of Estate of M.D.T. Kumaraswami Mudaliar
RespondentCommissioner of Income-tax and anr.
Excerpt:
- .....respondent and confirmed by the first respondent by his order dated june 11, 1974. 2. one m. d. t. kumaraswami mudaliar died on 25th december, 1957. he had three sons by his legally married wife and four sons other than through his legally married wife. one thirumalaiyappa mudaliar, one of his sons, filed a suit for partition in o.s. no. 25 of 1955, on the file of the subordinate judge's court, tirunelveli. in that suit, a preliminary decree for partition was passed by the sub-court and the same was confirmed by the high court in a.s. no. 96 of 1961. in those proceedings it has been held that there was a joint family consisting of kumaraswami mudaliar and his sons, and that as such the properties possessed by the said joint family are liable to be divided by metes and bounds among the.....
Judgment:

Ramanujam, J.

1. This writ petition is to issue a writ of prohibition restraining the respondents from taking any further proceedings in pursuance of the notice dated October 8, 1973, issued by the second respondent and confirmed by the first respondent by his order dated June 11, 1974.

2. One M. D. T. Kumaraswami Mudaliar died on 25th December, 1957. He had three sons by his legally married wife and four sons other than through his legally married wife. One Thirumalaiyappa Mudaliar, one of his sons, filed a suit for partition in O.S. No. 25 of 1955, on the file of the Subordinate Judge's Court, Tirunelveli. In that suit, a preliminary decree for partition was passed by the Sub-Court and the same was confirmed by the High Court in A.S. No. 96 of 1961. In those proceedings it has been held that there was a joint family consisting of Kumaraswami Mudaliar and his sons, and that as such the properties possessed by the said joint family are liable to be divided by metes and bounds among the coparceners. The matter ultimately went before the Supreme Court and the appeal before the Supreme Court is pending.

3. Even during the lifetime of Kumaraswami Mudaliar, he had been assessed in/the status of an individual. After his death, the same state ofaffairs continued and the receiver appointed in the partition suit, O.S. No. 25 of 1955, continued to be assessed as an individual. As a result of the decree in the partition suit and on the basis that Kumaraswami Mudaliar and his sons constituted a joint family, a notice has been issued by the second respondent in 1973, proposing to revise the assessment invoking his powers under Section 147 of the I.T. Act and treating Kumaraswami and his sons as members of an HUF. It is against this notice the petitioner had filed a revision petition before the first respondent and the first respondent also confirmed the said notice.

4. Before us, Mr. Srinivasan, learned counsel for the petitioner, contends that as the assessee, Kumaraswami Mudaliar, and later the receiver, representing the estate of Kumaraswami Mudaliar, had disclosed all the material particulars necessary for the purpose of assessment, the assessment cannot be revised under Section 147 of the I.T. Act and that when once the authority, after considering all the material particulars placed before him by the assessee had made an assessment on Kumaraswami Mudaliar in his individual capacity, and, later, on the receiver in the status of an individual, he has no power to change his opinion and make an assessment treating the estate of Kumaraswami Mudaliar as an HUF as is proposed by him in the notice. The petitioner's contention that Kumaraswami Mudaliar before his death and later the receiver had disclosed all necessary and material particulars for deciding the question of status and that the assessing authority had no power to go back on his earlier assessment on the question of status, involves investigation of facts as to what were the materials that were produced before the ITO at the first instance when the assessment was first made in the status of an individual. Further, the petitioner has come to this court even at the stage of the issue of a notice and before the actual proceedings are taken. It is always open to the petitioner to put forward his objections and convince the second respondent who issued the notice under Section 147 of the I.T. Act that there is no room for making a revised assessment as proposed by him and that he, having decided earlier the status, cannot change his opinion and make a revised assessment on the estate of Kumaraswami Mudaliar in the status of an HUF.

5. We have to, therefore, hold that this writ petition is premature. Further, the matter involves investigation of facts. The proper thing for the petitioner is to go before the second respondent and put forward his objections and if ultimately any adverse orders are passed against him by the second respondent, he can challenge that order in appropriate proceedings.

6. The writ petition is, therefore, dismissed without going into the merits of the case. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //