Case: Narendrakumar J. Modi Vs. Commissioner of Income Tax, Gujarat II, Ahmedabad

portions, each member getting an equal share, on October, 1954; (c) directing the respondent and his subordinates to cancel or withdraw the impugned orders and all steps taken for the recovery of the amounts so. assessed; (d) directing the respondent and his subordinates not to take any further steps for the recovery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955-56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circumstances of the case." It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of course. 5. It was pointed out to. the appellants counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only. Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account. While doing so, he traversed the entire allegations in the petition by adopting an ingenious method. Counsel submitted that the attachment had been mad e for realization of the income tax dues based upon various orders which were void and ultra vires. All those orders could be attacked collaterally while attacking the attachment order.Mr. Iyengar urged the following points in, support of the appeal:"(1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law. (2) That after Bapalal relinquished his interest in the joint family properties and ceased to be the karta, there was no karta of the family. Gulabchand--a junior member of the family could not act as a karta. Other members of the family did not accept him to be the karta. (3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi--a dead person--and hence the entire proceedings and assessment orders were nullities. (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings." 6. None of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ." 7. Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question. 8. The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds.

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

Explanation:
0[ds]It seems to us that the High Court rightly dismissed the appellants petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20, 000/-, the appellant was granted a certificate as a matter of courseNone of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relinquishment executed by him o n October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A ofthe Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub-section (3) of Section 25A provides. that where an order accepting partition had not been passed in respect of a Hindu family assessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismissing the appeal.It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disputed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal--father of the appellant died in the year 1956. In these circumstances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mullas Hindu Law 296, fourteenth edn. Where occurs the following passage:"So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties, " including even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) ."Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assessment made in respect of the income of his family which continued in the eye of law to be joint. The share of the appellants properties received by him from the joint family or the income thereof is liable for the income tax dues in question.The appellant, as we have said above, was ill-advised to file a misconceived petition on wholly untenable grounds.