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Madanlal Jindal Vs. Income-tax Officer, c Ward and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberMatter No. 236 of 1970
Judge
Reported in[1973]92ITR546(Cal)
ActsIncome Tax Act, 1961 - Sections 147 and 185(1)
AppellantMadanlal Jindal
Respondentincome-tax Officer, "c" Ward and ors.
Appellant AdvocateP.K. Pal and ;R.N. Dutt, Advs.
Respondent AdvocateA. Sengupta, Adv.
Cases ReferredSitaram Jindal v. Income
Excerpt:
- .....the said matter came up for hearing before ghose j. and in the judgment in the case of sitaram jindal v. income-tax officer, : [1972]84itr162(cal) ghose j. held that the reopening was bad. there, of course, the income-tax officer concerned had written a letter wherein he had referred to the letter of the income-tax officer, 'j' ward, dist. iii(2), which is an identical letter in the instant case and thereafter had stated: 'hence, i am submitting the proposal for your final approval.' in the instant case, there is no such letter from the income-tax officer. but from the facts it is apparent that what was explicit in the aforesaid case before ghose j. was implicit in the facts of this case. here there was no express statement of the income-tax officer that he was forwarding the.....
Judgment:

Sabyasachi Mukharji, J.

1. There was a firm called Messrs. Omprakash & Co. The wife of the petitioner was alleged to be a partner in the said firm. This application relates to assessment year 1961-62. The petitioner received a notice for reopening of the said assessment. It has been stated that the said reopening was done beyond the period of four years. It was stated that the proceedings for reopening were taken for the reasons mentioned in Section 147(a) of the Income-tax Act, 1961. The petitioner challenged the said reopening on the ground that the Income-tax Officer had no materials to reopen the said assessment and that at the time of the original assessment the petitioner had truly and fully disclosed all facts material for the assessment. It appears that there were several ladies who were partners in this firm, Messrs. Omprakash & Co., and the Income-tax Officer, 'J' Ward, Dist. III(2), Calcutta, had held that the ladies were benamidars of their respective husbands. Accordingly, the Income-tax Officer, 'J' Ward, wrote a letter to the Income-tax Officers concerned assessing the husbands of these ladies. It was stated in the instant case that by a letter dated 10th March, 1970, the Income-tax Officer, 'J' Ward, Dist. III(2), Calcutta, wrote to the Income-tax Officer, 'C' Ward, Dist. III(2), Calcutta, that by an order under Section 185(1) for the assessment year 1961-62 in the case of Messrs. Omprakash & Co., Smt. Parameswari Devi Jindal had been treated as the benamidar of her husband, Shri Madanlal Jindal, the petitioner herein. Accordingly, in that letter the said Income-tax Officer requested the respondent herein to note that the share income of the lady was to be clubbed in the hands of her husband, Mandalal Jindal, and he was requested to reopen the proceedings under Section 147(a) of the Act for the relevant assessment year. Upon that letter the Income-tax Officer, 'C' Ward, Dist. III(2), Calcutta, wrote and submitted reopening proposals and he also submitted the reopening proposal to the Commissioner of Income-tax with the reasons which were stated as follows:

'I have reasons to believe that the assessee had income to the extent of Rs. 14,304 from one partnership business which has escaped assessment for failure on the part of the assessee to disclose truly and fully all material facts at the time of original assessment within the meaning of Section 147(a). Tax on the escaped income works out roughly to Rs. 5,600.'

2. No indication, however, has been given as to the source of materials for the formation of belief. Upon this, sanction of the Commissioner was obtained. The husband of another partner of Messrs. Omprakash & Co., Sitaram Jindal, was also similarly assessed. Since on that notice of reopening the petitioner moved this court under Article 226 of the Constitution. The said matter came up for hearing before Ghose J. and in the judgment in the case of Sitaram Jindal v. Income-tax Officer, : [1972]84ITR162(Cal) Ghose J. held that the reopening was bad. There, of course, the Income-tax Officer concerned had written a letter wherein he had referred to the letter of the Income-tax Officer, 'J' Ward, Dist. III(2), which is an identical letter in the instant case and thereafter had stated: 'Hence, I am submitting the proposal for your final approval.' In the instant case, there is no such letter from the Income-tax Officer. But from the facts it is apparent that what was explicit in the aforesaid case before Ghose J. was implicit in the facts of this case. Here there was no express statement of the Income-tax Officer that he was forwarding the reopening proposal to the Commissioner on the ground of the letter from the Income-tax Officer, 'J' Ward, but from the facts and circumstances mentioned hereinbefore and from the fact that there is no specific statement indicating the source on which the Income-tax Officer in the instant case had formed the belief as to the escapement of income and as to the omission or failure on the part of the assessee it is apparent that he also acted merely on the letter of the Income-tax Officer, 'J' Ward. It is true that the letter of the Income-tax Officer, 'J' Ward, could have been a source of information upon which the Income-tax Officer in this case could have independently formed his own belief. But, in the instant case, it is not clear as to whether the Income-tax Officer made any effort to form any independent belief but had merely acted on the suggestion of the Income-tax Officer, 'J' Ward, and, from that point of view, the facts of this case are identical with the facts of the case of Sitaram Jindal v. Income-tax Officer, : [1972]84ITR162(Cal) . In the aforesaid view of the matter the said impugned notice must also be quashed. I must, however, also observe that counsel for the petitioner contended and raised various other questions, for instance, he argued that the findings in the registration proceedings were invalid and nullities and as such could not form the basis of belief in the instant case. It was further suggested that the sanction could not have been given by the Commissioner under Section 151 of the Income-tax Act, 1961. In the view I have taken it is not necessary for me to deal with the said contentions.

3. In the premises, the proceeding initiated by the notice dated 27th March, 1970, is hereby quashed and set aside and the respondents are restrained from taking any steps in respect of the said notice. If, in the meantime, assessment has been completed pursuant to the said notice, the same is also set aside and quashed. The respondents are restrained from giving any effect to the same. Let writs in the nature of certiorari and mandamus issue accordingly. The rule is made absolute to the extent indicated above. This, however, will not prevent the respondents from initiating any fresh proceedings in accordance with law if they are entitled to.

4. There will be no order as to costs. Stay of operation of this order for eight weeks is granted.


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