ABDUL FATTEH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is a statement of a case referred by the Revision Board under section 24(4) of the U.P. Agricultural Income-tax Act at the instance of the assessee, Abdul Fatteh, and this courts answers are required on the following four questions :

(2.) THE assessee is the mutawalli of a wakf which owns certain property. THEre is other property in villages Piprahia and Seharia which is owned by him along with 5 others as proprietors. A general notice under section 15(1) for the assessment year 1356 fasli was issued but it is not known within what period the assessee were required to file returns of their agricultural income of the previous year 1355 Fasli. Before any return could be filed by the assessee or the co-owners a notice under section 15(3) was issued by the assessing authority calling upon the assessee and the co-owners to file returns of their agricultural income within a certain period; it seems that the assessing authority treated the property in the two villages also as wakf property and returns of the income derived from all the properties (said to be wakf properties) by the 6 persons were called for. All the 6 persons were treated as individuals deriving income from the properties and not as mutawalli. In reply all of them filed returns showing their shares in the entire income from all the properties, but the assessing authority held that the assessee was the mutawalli and was alone liable to be assessed on entire income from all the properties and on July 7, 1949, assessed him as mutawalli on the entire income. THE assessee filed an appeal before the Commissioner and contended that he had received no notice to submit a return as a mutawalli and could not be assessed as such on the entire income. THE Commissioner repelled the contention saying that no prejudice was caused to him by his not receiving the notice under section 15(3) as a mutawalli. He, however, found that the property in the two villages was not wakf property but was owned by the assessee and the co-owners in their own rights and on January 23,1950, set aside the assessment order and remanded the case to the assessing authority for fresh assessments, one against the assessee as a mutawalli in respect of the income from the wakf property and the other against him and the co-owners in respect of the share of each in the income from the property in villages Piprahia and Seharia. He did not have sufficient data to separate the income of the wakf property from the entire income on which the assessee was assessed and, therefore, he was obliged to remand the case. In the remand order he gave the direction that the income from the wakf property should be assessed against the assessee alone and that fresh assessments be made in respect of the other two villages by separate proceedings after due notice to the appellant and other owners of those two villages. This order meant that the assessee was to be assessed on the income from the wafk property without any fresh notice. THEre are 3 Kinds of notices which can be issued by an assessing authority, (1) a notice under section 15(1), which is the general notice be issued on or before the 1st day of November, 1948, or on any such day as may be fixed by the State Government, (2) a notice under section 15(3) which is to be served on every person liable to pay within such period, not being less than 30 days, as may be specified in the notice a return of his total agricultural income during the previous year and (3) a notice under section 16(2) which is to be issued by the assessing authority, having reason to believe that a return made under section 15 is incorrect or incomplete to the person making the return requiring him on a date to be specified in it to attend its office or to produce or cause to be produced any evidence in support of the return. None of these notices was to be served upon the assessee before a fresh assessment order was passed against him, but notices were required to be served against him and the co-owners in respect of the assessment on their shares in the income from the two villages. THEre was no question of serving notices under section 15(1) or notices under section 15(3) against them. A notice under section 15(1) was to be served on or before 1948, or on any such day as was fixed by the State Government. A notice under section 15(3) had been already issued against the 6 persons and there was no necessity of issuing fresh notices under section 15(3) to them and the Commissioners order did not at all suggest that he meant these notices to be issued again to them. THE case was remanded by him to the assessing authority because he himself could not separate the income of the two villages from the income of the wakf property; so evidence was required to show what was the income from the wakf property and what was the income from the two villages and the notices meant by the Commissioner must have been notices under section 16(2).

(3.) THE State Government filed a revision application against the order of the assessing authority which was allowed by the Revision Board on September 8, 1952. THE Board upheld the view of the assessing authority and the assessees contention that a notice under section 15(3) can be issued only the assessment year and not after its expirty but held that after a return had been filed a notice under section 15(3) was not necessary, that the assessee had filed a return after the remand order in response to the fresh notice under section 15(3), that it could be treated as a return filed in reply to the general notice issued under section 15(1) because what is material is the filing of a return and not the notice in response to which it is filed what the remand order passed by the Commissioner required a notice under section 16(2) and not a fresh notice under section 15(3) to be issued to the assessee, that the original section 15(3) notices issued to the assessee and his co-owners required them to file returns of their income regardless of the capacity in which they had received the income and that its previous orders directing a fresh notice to be issued under section 15(3) was, therefore, not correct. it accordingly reconsidered and revised it in exercise of its revisional jurisdiction conferred by section 22. It allowed the application of the State and passed the following order :