V.K. Kumaraswami Chettiar vs Additional Income Tax Officer, Madras, and Another

Rajamannar, C.J.—The Judgement of the Court was delivered by

This petition arises our 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, 1944; but it appears that the association itself

was dissolved after the close of the account year. Notice u/s 34 of the Act was served after the close of the year, and long after the dissolution, on

the petitioner sometime 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 due, 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.

The first point taken in the petition was that as there could be no legal and valid partnership in respect of abkari business, the assessment 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 Co. v. Commissioner of income tax. This objection is

overruled.

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 u/s 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 related to the filing of an appeal. The petitioners 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 petitioners contention appears to be merely this : that, as a notice purporting to be a notice

of demand u/s 29 of the Act was served on him and is does not conform to the requirements of rule 20, it could not form the basis of any

proceedings 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 u/s 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

from 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.

Income Tax Officer. 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 anyone 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.

In the result we are not satisfied that there is any ground on which we can, in the exercise of our powers under article 226of 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 - advocates fee Rs. 100.

Petition dismissed.