Case: The Commissioner Of Income-Tax, Andhrapradesh, Hyderabad Vs. K.Adinarayana Murty

30, 1957 which was in pursuance of the first notice under S. 34 issued on March 22, 1957. It appears from the statement of the case that the Income-tax Officer was required to disclose the particular notice on which he made the assessment. The Income-tax Officer said that the assessment was based on the second notice. The Appellate Tribunal took the view that the return filed by the assessee on April 30, 1957 in response to the first notice was not a valid return and the Income-tax Officer was not bound to act upon it. Accordingly the Appellate Tribunal held that the assessment made under the second notice was legally valid. Since the Appellate Assistant Commissioner did not deal with the merits of the assessment the Appellate Tribunal remanded the appeal to the Appellate Assistant Commissioner for being dealt with on merits. At the instance of the assessee the Appellate Tribunal stated a case to the High Court on the following question of law:"Whether, on the facts and in the circumstances of the case, the assessment of pursuance of the notice issued under S. 34 on l2-2-1958 is a valid assessment?"The High Court held that the first notice dated March 22, 1957 was not invalid in law and consequently the issue of the second notice on February 12, 1958 was illegal and the assessment made in pursuance of that notice was also illegal. The High Court accordingly answered the question of law in favour of the assessee.3. The question presented for determination in this appeal is whether it was competent for the Income-tax Officer to issue the second notice dated February 12 1958 and continue proceedings thereon ignoring the return already filed by the assessee in pursuance of the first notice under the same section. It was pointed out by Mr. S. T. Desai on behalf of the assessee that both the notices under S. 34 of the Act were in identical terms and were addressed to the assessee in his name and the issue of the second notice made no difference in its contents to the knowledge of the assessee. It was also contended that the assessee filed his return in the status of Hindu Undivided Family in response to the first notice and the Income-tax Officer ought not to have ignored that return. We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status of individual.The Appellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and without jurisdiction. It was contended by Mr. S. T. Desai on behalf of the assessee that the return was filed by the assessee in response to the first notice in the character of Hindu Undivided Family. But the submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are unable to accept the argument put forward on behalf of the assessee as correct. The Income-tax Officer could not have validly acted on the return filed by the assessee in the status of Hindu Undivided Family and any assessment made by the Income-tax Officer on such return would have been invalid in law because the notice under S. 34 had been issued in the status of individual and sanction of the Commissioner for the issue of a notice under S. 34 was also obtained on that basis. We therefore consider that the Income-tax Officer was entitled to ignore the return filed by the assessee as non est in law. It is not disputed that the Income-tax Officer issued the first notice under S. 34 of the Act on March 22. 1957 to the assessee in the status ofAppellate Tribunal has stated in para 3 of the statement of the case that the Income-tax Officer had taken the view that the correct status of the assessee was individual and in accordance with that view "a notice under S.34 was issued to the assessee as above for makinging an assessment in the status of individual. As there was some ambiguity in the statement of the case on this point, we referred to the original file of the income-tax proceedings and satisfied ourselves that the assertion of fact made in the statement of the case is correct, It appears that on, February 13, 1957 the Income-tax Officer had applied for the sanction of the Commissioner for instituting proceedings under S. 34 (1) (a) of the Act against the assessee to make an assessment in the status of an individual with regard to the procurement agency business. Sanction of the Commissioner was given to the proposal of the Income-tax Officer and thereafter the first notice under S. 34 of the Act was issued on March 22, 1957. In this state of facts we are of opinion that the proceeding taken under the first notice under S. 34 of the Act was invalid and ultra vires. The correct status of the assessee was that of Hindu Undivided Family as was held by the Appellate Assistant Commissioner in the assessment for the year 1954-55 and since the first notice under S. 34 was issued to the assessee as an individual for making assessment in that status it is manifest that the proceedings taken under that notice were illegal and without jurisdiction. Under the scheme of the Income-tax Act the Individual and the Hindu Undivided Family are treated as separate units of assessment and if a notice under S. 34 of the Act is wrongly issued to the assessee in the status of an individual and not in the correct status of Hindu Undivided Family the notice is illegal and all proceedings taken under that notice are ultra vires and withoutthe submission of the return by the assessee will not make any difference to the character of the proceedings in pursuance of the first notice which must be held to be illegal and ultra vires for the reasons already stated. We are therefore of the opinion that the Income-tax Officer was legally justified in ignoring the first notice issued under S. 34 of the Act and the return filed by the assessee in response to that notice and consequently the assessment made by the Income-tax Officer in pursuance of the second notice issued on February 12, 1958 was a valid assessment.