GOVINDA SETTY T Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner in these petitions has prayed for quashing the intimation dated March 22, 1993, issued by the first respondent under section 143(1)(a) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for the assessment years 1991-92 and 1992-93, copies of the same have been produced as annexures "B" and "C", respectively; and also the order dated April 19, 1994, passed by the second respondent, a copy of which has been produced as annexures "H", rejecting the appeal filed by the petitioner against the orders passed by the first respondent refusing to rectify the intimations. Annexures "B" and "C", issued by him pursuant to the applications filed under section 154 of the Act and for a further direction in the nature of mandamus directing the first respondent to assess the income in the status of an Hindu undivided family at nil for the said assessment years and to issue refund of advance tax paid for the said assessment years by the petitioner with appropriate interest thereon under section 244A of the Act.

(2.) THE brief facts of the case which are relevant for the disposal of these petitions may be set out as hereunder :

(3.) SRI Sarangan, learned senior counsel appearing along with SRI S. Parthasarathy, submitted that the orders impugned are totally illegal and suffer from errors apparent on the face of the records, inasmuch as, since there was no Hindu undivided family both on the date of filing of the returns and also on the date of assessment, the intimation given by the first respondent as per the orders impugned is one beyond the power conferred on the first respondent under section 143(1)(a) of the Act. He further submitted that the first respondent has seriously erred in law in not rectifying the intimation issued when applications were filed seeking rectification of the same under section 154 of the Act. In support of his submission, he relied upon a Division Bench decision of this court in the case of CWT v. G. E. Narayana [1992] 193 ITR 41, wherein this court has taken the view while considering the provisions of the Wealth-tax Act that without the presence of the assessee, it is not possible to make an order of assessment unless the law provides a machinery to assess the erstwhile Hindu undivided family, by enabling the assessment proceedings to be initiated or continued against a proper successor. Secondly, he submitted that the view taken by the second respondent that the appeal filed by the petitioner was not maintainable as the petitioner had not deposited the balance of returned income of Rs. 16,154 and Rs. 3,645 for the assess-ment years 1991-92 and 1992-93 is erroneous in law. According to learned senior counsel, since it was the case of the petitioner that the intimation given was one without the authority of law and the petitioner was not liable to be assessed for tax and the petitioner was not liable to pay the amount in question, the question of the petitioner paying the amount in question before filing the appeal did not arise for consideration and, therefore, the interpretation placed by the second respondent on subsection (4) of section 249 of the Act is erroneous in law.