SRI KRISHNA Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution. It has been prayed that the proceedings for recovery of income-tax dues and the order of the Commissioner of Income-tax be quashed and the respondents be restrained from making attachment and collection of rent of property No. 55/110, General Ganj, Kanpur.

(2.) The material facts as they appear from the petition, the affidavit and the annexures thereto, are these. There was an HUF consisting of Shri Krishna and his four sons. Shri Krishna was the karta of an HUF. The HUF was being regularly assessed in respect of its income. The karta filed returns for the assessment years 1949-50 and 1950-51 and the assessment for these years was completed under Section 23(3) of the Indian I.T. Act, 1922 (briefly "the Act"), on March 28, 1955, and January 18, 1956, respectively. The assessment of income-tax for the assessment years 1951-52, 1952-53, 1953-54, 1954-55 and 1955-56 was completed ex parte under Section 23(4) of the Act on February 28, 1956. It appears that proceedings for recovery of income-tax for the assessment years 1949-50 and 1950-51 was started in January, 1956, and house No. 55/110, General Ganj, Kanpur, was attached in January, 1956. Smt. Lakshmi Devi, wife of Shri Krishna, karta, filed Suit No. 106/58 in the Court of the 1st Civil Judge, Kanpur, seeking declaration that the plaintiffs were owners of house No. 55/110 by virtue of a sale deed dated January 15, 1955, and the same was not liable to attachment and sale in recovery of the income-tax dues against the HUF. The plaintiffs arrayed the Union of India and the karta of the HUF and others as parties to the suit. The suit was dismissed by the civil judge. The plaintiff filed First Appeal No. 27 of 1963 in this court and the appeal was also dismissed by judgment dated May 24, 1973. It appears that the proceedings for recovery of the income-tax dues by sale of house No. 55/110, General Ganj, Kanpur, did not take place during the pendency of the suit and the first appeal. After the dismissal of the appeal, the Department again took steps to realise the arrears of income-tax. Since the beginning of the year 1975, the karta sent several letters and applications to the ITO and other authorities. In an application dated December 16, 1975 (annex. III), addressed to the Commissioner, the karta averred that he had not received any assessment order or demand notices in respect of the assessment years 1949-50 and 1950-51. In that application he also added that the Union of India had filed assessment orders for the assessment years 1949-50 to 1955-56 in Suit No. 106/58 in the year 1963 and only then the karta came to know about these assessment orders. In some applications and letters, the karta prayed for inspection of the records and for supply of assessment orders and demand notices. This process continued during the years 1975 to 1979. The last order dated 17-8-1979/8-11-79 was passed by the Commissioner saying that "no interference was called for". Thereafter, this writ petition was filed in this court in February, 1980.

(3.) In the writ petition several prayers have been made ; one prayer is for quashing the recovery proceedings for "the assessment years in question", but the assessment years have not been specified. However, the learned counsel for the petitioners has orally submitted that the assessment years involved are 1949-50 to 1955-56. The other prayer is for quashing the order of the Commissioner but no date of the order has been mentioned; orally it has been urged that the order is dated 17-8-1979/ 21-11-79.