G I T LUCKNOW Vs. K S RASHID

JUDGEMENT

(1.) This appeal certificate has been brought by G. 1. T. , lucknow and Another. The respondent is one K. S. Rashid. He is ex-parte.

(2.) The said K. S. Rashid is one of the partners in a firm M/s. K. S. Rashid and Sons. He held one-third shares in that firm. For the assessment year 1947-1948, the relevant accounting year being 1946-1947, he was assessed on 15/11/1949. The L. T. O. came to the conclusion that in the concerned assessment year, he had incurred a loss of Rs. 25,056. 00. There-after the Income Tax Investigation Commission reported that the firm's case (Rashid and Sons) had been under-assessed for many years including the assessment year 1947-1948. In pursuance of that report, fresh assessment was made on that firm on 30/05/1951. This court declared the provisions of S. 5 (1) and 5 (4) of the Investigation Commission Act to be ultra vires. In view of that decision the re-assessment made in the year 1951 was cancelled. But fresh proceedings were started under S. 34 of the Indian Income-tax Act, 1922. On 31/01/1956, the Income-tax officer, Delhi, reassessed the income of the firm at Rs. 6,24,833. 00. The petitioner's share in the income for the year 1947-48 was fixed at rs. 2,08,277/. On 28/02/1956 the Income-tax Officer, A-Ward Meerut passed an order under S. 35 (5) of the Indian Income-tax Act, 1922, holding that for the year 1947-48 the petitioner was liable to pay tax upon a net income of Rs. 2,08,277. 00. A further order was made but there is no need to refer to that order because that order either stands or falls with the assessment order made by the I. T. O. A-Ward, Meerut on 28/02/1956.

(3.) The assessee challenged the order made by the I. T. O. A-Ward, meerut under S. 35 (3) by means of a Writ Petition under Article 226 of the Constitution before the High court of Allahabad. The High court following the decision of this court in Income-tax Officer, V Circle, Madras and another v. S K. Habibullah and Second Additional Income-tax Officer, Guntur v. Atmala Nagaraj and Others' allowed the writ petition and quashed the impugned assessment orders. This appeal is brought against the decision of the high court.