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Girdhardas Kothari Vs. Income-tax Officer, a Ward and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberMatter No. 214 of 1967
Judge
Reported in[1971]79ITR490(Cal)
ActsIncome Tax Act, 1961 - Sections 147 and 148
AppellantGirdhardas Kothari
Respondentincome-tax Officer, "a" Ward and ors.
Appellant AdvocateS.S. Roy, Adv.
Respondent AdvocateD. Gupta, Adv.
Excerpt:
- .....under section 148 of the income-tax act, 1961 (hereinafter referred to as 'the act'), for the assessment year 1946-47. the notice is in the usual form alleging that the income-tax officer has reason to believe that the petitioner's income for the assessment year 1946-47 has escaped assessment within the meaning of section 147 of the act.2. the reasons in support of the issue of the impugned notice have been disclosed in paragraph 5 of the affidavit of sukumar bose affirmed on the 30th april, 1969. the substance of the allegations is that the petitioner and one d. j. dastur were said to be partners of a firm called girdharclas maheswari & company which was assessed as an unregistered firm in the assessment year 1946-47. according to the said affidavit, it is claimed by the assessee.....
Judgment:

T.K. basu, J.

1. In this application, the petitioner, Girdhardas Kothari, challenges a notice, dated the 27th March, 1963, issued under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), for the assessment year 1946-47. The notice is in the usual form alleging that the Income-tax Officer has reason to believe that the petitioner's income for the assessment year 1946-47 has escaped assessment within the meaning of Section 147 of the Act.

2. The reasons in support of the issue of the impugned notice have been disclosed in paragraph 5 of the affidavit of Sukumar Bose affirmed on the 30th April, 1969. The substance of the allegations is that the petitioner and one D. J. Dastur were said to be partners of a firm called Girdharclas Maheswari & Company which was assessed as an unregistered firm in the assessment year 1946-47. According to the said affidavit, it is claimed by the assessee that the firm has been dissolved in the year 1947. It is further alleged that, in or about 1963, it came to the notice of the Income-tax Officer that there were certain cash Credit entries in the books of the firm to the extent of Rs. 1,85,000 said to have been received from Shri P.O. Himatsingka and Rs. 1,00,000 from one Bhagabati Prosad Prabhudayat. Both those cash credits were relevant for the assessment in the assessment year 1946-47, but the same had not been duly considered in the regular assessment of the firm. According to the said affidavit, action has been taken to reopen the assessment of both the petitioner as well as the said firm. The said firm having been dissolved, it has become necessary, according to the deponent, to reopen the case of the petitioner.

3. Mr. Siddharta Sankar Roy 'appearing on behalf of the petitioner contends that, even assuming all the allegations contained in the affidavit of Sukumar Bose to be correct, they may amount to an allegation of omission or failure on the part of the said firm to disclose fully and truly all material facts relevant to its assessment for the assessment year 1946-47. The said reasons, however, do not amount to any omission or failure on the part of the petitioner who is the assessee according to the impugned notice before me, to disclose fully and truly all material facts necessary for the petitioner's assessment. In other words, even if the allegations are assumed to be correct, they do not justify the reopening of the assessment against the petitioner.

4. It is submitted by Mr. Roy that, for the purpose of the Income-tax Act, a firm is a distinct and separate assessable entity from the partners constituting it. My attention was drawn in this connection to tlxe definition of the word ' person ' in Section 2(31) of the Act. Reliance was also placed on a decision in the case of Commissioner of Income-tax v. A. W. Piggies & Company, : [1953]24ITR405(SC) . This proposition of law was not disputed on behalf of the revenue.

5. It was further pointed out on behalf of the petitioner that, assuming that the firm of Girdhardas Maheswari & Company has been dissolved, it does not justify reopening of the assessment of the petitioner on the facts alleged. Reference is invited in this connection to Section 189 of the Act which provides, inter alia, that where any business by a firm has been, discontinued or where a firm is dissolved, the Income-tax Officer shall make an assessment of the, total income of the firm as if no such discontinuance or dissolution has taken place and all the provisions of the Act shall apply, so far as may be, tn such assessment. Therefore, it is submitted, that the Act makes pacific provisions for assessment of a firm in spite of its dissolution. The word ' assessment ', it is pointed out with reference to Section 2(8) of the Act, includes reassessment. My attention is also drawn to Section 155 of the Act which provides that, if on a reassessment of the firm, it is found that the share of a partner in the income of the firm has not been included in the assessment of the partner or, if included, is not correct, the Income-tax Officer may amend the order of assessment of a partner with a view to the inclusion of the share of the assessment or the correction thereof, as the case may be. It is further provided in Section 155 that the provisions of Section 154 of the Act with regard to rectification shall apply, so far as may be, the period of four years specified in Sub-section (7) of Section 154 being reckoned from the date of the final order passed in the case of the firm. On the strength of the above provisions of the Act, it is contended that, even assuming that the reasons in support of the reopening are correct, the proper procedure is to assess the firm under Section 189 of the Act and thereafter to amend the assessment of the petitioner as a partner of the firm under the provisions of Section 155 thereof. It is submitted that Section 155 having made special provisions for such a situation should be deemed to have excluded the operation of the general provisions of Section 147 of the Act.

6. Consequently, it is contended that the impugned notice under Section 148 of the Act should be held to be without jurisdiction and void.

7. Mr. Dipankar Gupta appearing on behalf of the revenue drew my attention to Section 183 of the Act which provides that the income of the firm may, under certain circumstances, be assessed in the hands of a partner. It was submitted that in view of the provisions of Section 183, the income of the firm has a rational connection and a relevant bearing on the individual assessment of a partner. Under certain circumstances, if there is non-disclosure by the firm it amounts to non-disclosure by the partners. Hence, the reasons given in support of the reopening of the assessment of the petitioner to the effect that the income of the firm has escaped assessment has a rational connection and relevant bearing on the formation of the belief by the Income-tax Officer that the income of the petitioner has escaped assessment within the meaning of Section 147 of the Act,

8. It is further submitted by Mr. Gupta that the provisions of Section 155 of the Act do not operate as a bar to proceedings being initiated under Section 147 in the present case.

9. In my view, the contention of Mr. Roy should succeed. It is not necessary for me to decide in this present case as to whether the facts alleged in the affidavit of Sukumar Bose amount to a non-disclosure by the firm of Girdhardas Maheswari & Company. That question may fall for consideration in the event of a challenge being thrown against the notice issued in1 respect of the firm proposing the reopening of the assessment of the firm. Even assuming that there has been such a non-disclosure on behalf of the firm, that, in. my view, does not justify the reopening of the petitioner's assessment in the instant case. There is no material before me in support of the contention that there has been any omission or failure on the part of the petitioner to disclose fully and truly all material facts necessary for the assessment of the petitioner for the assessment year 1946-47. That being the position, it must be held that the conditions precedent for the assumption of jurisdiction under Section 147 of the Act against the petitioner have not been fulfilled in the present case.

10. In that view of the matter, it must be held that the impugned notice is without jurisdiction and void.

11. Haying regard to my finding on this question, it is not necessary in the present application to decide the wider question as to whether the provisions of Section 155 of the Act would exclude the operation oi Section 147 thereof.

12. In the result, the application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall, cancel and withdraw the notice dated the 27th March, 1963, under Section 148 of the Act and also the notices dated the 20th March, 1967, issued under Sections 142(1) and 143(2) of the Act and a writ in the nature of prohibition restraining the respondents from giving any effect to the said notice. The respondent would, however, be at liberty to proceed according to law.

13. There will be no order as to costs.


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