CHATTANATHA KARAYALAR S Vs. EXCESS PROFITS TAX OFFICER

JUDGEMENT

(1.) THE petitioner is the same in all these writ petitions and he has prayed for the issue of writs of certiorari to quash the four assessment orders of the same date, December 31, 1963, passed under the Travancore Excess Profits Tax Act, 1120 (hereinafter referred to as "the Travancore Act ") for the period from 19-8-1118 to 18-8-1121. THE assessments in question are attacked by the petitioner on the following grounds: (1) the Travancore Excess Profits Tax Act of 1120 had been repealed in the year 1946 and that, therefore, the assessments made under the provisions of that repealed Act were without jurisdiction, (2) Section 13 of the Finance Act of 1950 cannot have the effect of saving the Travancore Excess Profits Tax Act of 1120, (3) even if the Travancore Excess Profits Tax Act of 1120 can be put in force for the period anterior to 19

(2.) 6, the competent authorities to levy the tax are not the Union authorities but only those authorities constituted under the Travancore Act, and (4) there has been a partition between the petitioner and the other members of his family even in the year 1950 and that therefore the impugned assessments made on December 31, 1963, on the petitioner as the karta of the Hindu undivided family are not valid.

(3.) WE next take up the contention as to whether the petitioner can be assessed as a karta of the Hindu undivided family under the Travancore Act for the periods in question after the Hindu undivided family has become divided in the year 1950. Mr. Balasubrahmanyan, learned counsel for the respondent, contends that the petitioner should not be allowed to raise the above contention as such a contention was not raised before the assessing authority, the respondent herein. He places reliance on the decision in Karamchand v. Commissioner of Income-tax, [1931] 5 I.T.C. 313 ; A.I.R. 1931 Lab. 601, where the Lahore High Court had expressed the view that an assessee served with a notice under Section 22(2) of the Income-tax Act, as a head of the Hindu family and assessed as such is not entitled to raise a plea before the appellate authority that the joint family had become disrupted long earlier and that the assessment made on the Hindu undivided family is invalid if he has not raised such a point before the Income-tax Officer, under Section 25A of the Income-tax Act. However, in this case, the petitioner has submitted a return as karta of the Hindu undivided family on 21-6-1122 and the respondent has not given any notice to the petitioner before assessment but has proceeded to complete the assessment on the basis of the return already filed. Therefore, the petitioner had no opportunity to put forward the plea that the joint family has become disrupted and that, therefore, there could not be any assessment on the Hindu undivided family in the name of the petitioner as karta. It is only in cases where the assessee had an opportunity to put forward a plea but fails to avail of that opportunity it could be said that he cannot raise such a plea before the appellate authority for the first time. In this case the disruption of the joint family has taken place after the submission of the return by the then karta but before the assessments were made, and the petitioner had no notice of the proposed assessment on the joint family as such. WE are, therefore, of the view that the petitioner is entitled to raise the plea that the joint family has become divided and that the assessment made on such a joint family after its disruption is bad.