MADAN MOHAN PAUL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) ALTHOUGH there are two petitioners in the writ petition, in fact the first petitioner, Madan Mohan Paul (hereinafter referred to as "the petitioner"), is the person aggrieved. Messrs. Allied Metal Products arrayed as the second petitioner, is a partnership concern which came into being as a result of a partnership agreement dated October 1, 1980, in which the first petitioner was admittedly one of the partners along with respondents Nos. 4, 5 and 7 who were the other partners. The firm has its head office at Station Road, Gonda, and the production unit at Kanpur. It is averred that the firm was registered with the Registrar of Firms under the Indian Partnership Act. It was also registered under Section 184/185 of the Income-tax Act, 1961 (for short, "the Act"), and the registration was allowed for the subsequent years also as contemplated under Section 184(7) of the Act. It appears that a fresh deed of partnership dated July 1, 1990 (annexure "4" to the writ petition), was executed. The preamble to that deed, inter alia, recites that the petitioner, Madan Mohan Paul, by his written notice dated May 25, 1990, to the remaining partners expressed his desire to retire from the partnership after the expiry of the notice period of one month as required under Clause 14 of the partnership deed dated October 1, 1980, and on the expiry of the notice period he submitted his retirement consent on June 25, 1990, confirming his retirement with effect from the close of June 30, 1990, and from that date, he actually retired. It is further recited that the remaining partners of the said firm have accepted the retirement of the petitioner with effect from the close of June 30, 1990, and they have reconstituted the firm from July 1, 1990, along with respondent No. 6 who was not a partner in the earlier partnership deed dated October 1, 1980.

(2.) WE may notice that respondent No. 4 is the brother-in-law of the petitioner being married to his sister and respondents Nos. 4, 5 and 6 are brothers. The case of the petitioner is that he continues to be a partner of the firm and the initial deed of partnership dated October 1, 1980, still subsists, inasmuch as the firm, Messrs. Allied Metal Products, under that deed was never dissolved at any point of time. According to the petitioner, respondents Nos. 4, 5 and 7 in collusion with each other stealthily manipulated a fresh partnership deed dated July 1, 1990, excluding him from the partnership and including respondent No. 6 in disregard of the mandatory provisions of the Indian Partnership Act. The reconstituted firm, it is averred, has applied for fresh registration in terms of Sub-section (8) of Section 184 of the Act and the matter is sub judice before the Income-tax Officer, Gonda, the third respondent. The reconstituted firm had also applied and was granted fresh registration on January 25, 1991, by the Registrar of Firms under the Indian Partnership Act. The question whether such registration under the Partnership Act could be granted, is the subject-matter of another Writ Petition No. 21890 of 1993 filed before this court with which we are not concerned in this case. The petitioner also alleges that he has made certain representations/applications to the Income-tax Officer, Gonda (third respondent), which are pending adjudication and no orders on his representations/applications have so far been passed. Copies of those representations/applications have been filed as annexures "9" to "14" to the writ petition. It is at this stage that the petitioner has approached this court for a writ of mandamus commanding respondents Nos. 1, 2, 3 and 3A not to accept the income-tax returns of the reconstituted firm particularly in respect of the assessment year 1991-92 without affording an opportunity of hearing to the petitioner. It is further prayed that a direction be issued to the aforesaid respondents to decide the representations/applications of the petitioner before deciding the application of respondents Nos. 4 to 7 seeking registration of the firm in question under Section 184/185 of the Income-tax Act and the Rules framed thereunder.

(3.) COMING to the next submission that the respondents be directed to decide the representations/applications made by the petitioner, this court would be reluctant to issue such a direction unless a clear case is made out for such a relief. Such a direction cannot be issued unless it is demonstrated that the representations/applications are statutorily maintainable and are within the competence of the respondent concerned to decide the same. From a perusal of the various representations filed by the petitioner, it appears that some of the demands made therein are such which are motivated by the consideration to have access to the material or documents to which the petitioner is not otherwise entitled. For instance, in the representation dated October 8, 1993 (annexure "13" to the writ petition), the petitioner has, inter alia, required the third respondent to requisition and impound the account books and relevant records, sales and purchase bills, stock registers and the orders received from the various Government Departments by the reconstituted firm and to make them available to the petitioner for his examination in order to detect discrepancy, etc. Again the contention whether the petitioner continues to be a partner or not, is a matter which perhaps can be adjudicated upon by a competent civil court. Undisputedly, the petitioner has already instituted a civil suit being Suit No. 94 of 1993 in the Court of the Civil Judge, Gonda, seeking dissolution of the firm and for accounting, etc. Likewise, the representations also contain allegations which are more in the nature of complaints than anything else. They are with respect to evasion of tax by the reconstituted firm and its partners. Learned counsel for the petitioner was unable to refer to us any provision in the Act under which the representations/applications of the nature referred to above were maintainable and for which he could demand a decision as a matter of right, or there was a corresponding duty of the concerned respondents to decide the same. In the name of representations, the petitioner cannot be permitted to require a tax authority or a statutory functionary to decide a non-statutory representation in order to settle some score with the contesting private respondents in respect of any dispute between them. It is settled law that in order that a mandamus may issue to compel the respondents to do something, it must be shown that the statute imposes a legal duty on the concerned authority and the applicant has a legal right under the statute to seek a mandamus to enforce its performance. Non-statutory representation may not necessarily be decided in every case. The question, whether the reconstituted firm is indulging in evasion of tax, etc., is a matter which can certainly be looked into by the tax authorities if the circumstances so demand, for which they are well-equipped. Though it may be true that an Assessing Officer can go into any material collected from any source whatsoever for the purposes of enquiry against an assessee, it would be too far-fetched to hold that the Assessing Officer can be compelled by a third party to take cognizance of his representation and to record a decision thereon by deciding the representation. In this view of the matter, no direction is called for from this court to decide the representations of the petitioner which are motivated by ulterior purposes. Therefore, the second contention also cannot be upheld.