K. Mohammed Hussain, Receiver of Estate of M.D.T. Kumaraswami Mudaliar vs Commissioner of Income Tax and Another

Ramanujam, J.—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.

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.

Even during the lifetime of Kumaraswami Mudaliar, he had been assessed in/the status of an individual. After his death, the same state of affairs

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 u/s 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.

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 u/s 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 u/s 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.

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.

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