K N AGRAWAL Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) This writ petition (No. 387 of 1980) is directed against a show-cause notice issued by the Commissioner of Income-tax under Section 263 of the Income-tax Act, 1961, calling upon the petitioner to show cause as to why the assessment order dated September 21, 1978, relating to the assessment year 1975-76 be not revised.

(2.) The impugned show-cause notice recites the following facts : For the assessment year 1975-76, the assessment in the case of the petitioner herein was made by the Income-tax Officer on September 21, 1978, on a total income of Rs. 13,08,902. From the records maintained in the office of the Inspecting Assistant Commissioner (Assessment), Agra, the Commissioner found that the petitioner was a partner in the partnership firm, Shiv Narain Parmendra Narain, Ranghat, Aligarh, with a share of 50%. The petitioner's contention, however, was that 1/3rd of the income received towards the said share alone must be assessed in his hands and the remaining 2/3rds of the said share income should be distributed equally between his wife and his minor son by virtue of an overriding charge created by a memo of partial partition dated November 9, 1985. The Income-tax Officer negatived the said contention of the petitioner and included the entire income pertaining to the said 50% share in the income of the individual. The petitioner filed a revised return in which he disclosed higher figures, and again with the same contention relating to the share income received from the aforesaid partnership-firm. This contention was accepted by the Income-tax Officer and only 1/3rd of the share income was assessed in the hands of the petitioner and the remaining 2/3rds was held assessable equally in the hands of the petitioner's wife and his minor son. The Commissioner is of the opinion that the entire share income is assessable in the hands of the petitioner alone and the assessment made by the Income-tax Officer to the contrary is erroneous in law and prejudicial to the interests of the Revenue. The petitioner is accordingly called upon to show cause against the same. Without, however, submitting any explanation, the petitioner straightaway approached this court against the show-cause notice by way of this writ petition, which was entertained and admitted as far back as in 1980 and all further proceedings stayed. The petitioner's case, as set out in the writ petition, is to the following effect:

(3.) A dispute identical to the one mentioned in the impugned show-cause notice had arisen in respect of the assessment years 1966-67 to 1974-75. The matter was finally brought to this court by way of a reference and it was decided by this court that the income accruing to the wife and the minor son of the petitioner cannot be clubbed with or included in the income of the petitioner (vide I. T. R. No. 764 of 1978). This decision was rendered by this court following its earlier decision in CIT v. Lakshmi Kant Gupta [1978] UPTC 314). The Income-tax Officer has merely followed the decision of this court. If so, it cannot be held that the order of assessment made by him is erroneous within the meaning of Section 263. The impugned show-cause notice is, therefore, without jurisdiction and amounts to harassment of the petitioner.