MOTI LAL PURSHOTTAM DAS Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioners Moti Lal and Purshottam Das prayed to this Court for issue of a writ in the nature of certiorari to quash a notice issued by the Income-tax Officer, District Kanpur, dated the 4-11-1955, whereby the petitioners were called upon to pay a sum of Rs. 12,125-14-0 and for the issue of a further writ in the nature of prohibition commanding the opposite party not to recover that amount from the petitioners, and not to take any further proceedings for the recovery of the aforesaid amount. THE notice, which was thus challenged, called upon the petitioners to deposit this amount, which had been assessed as income-tax on the firm of Messrs. Indian Distillary, Anwarganj, Kanpur, on the ground that the petitioners were jointly and severally liable for the payment of this tax under Section 44 of the Income-tax Act.

(2.) SINCE the additional ground, taken subsequently, raises a question of jurisdiction of the Income-tax Officer who made the assessment, and challenges the validity of that order of assessment, we think it advisable to deal with this point first. The contention of learned counsel for the petitioners, which has to be considered, is that the order of assessment in question, which relates to the assessment year 1944-45, was passed by the Income-tax Officeis on the 22nd of February 1949 on the firm as the assessee when the firm had been dissolved earlier, on 7-2-1948.

(3.) WHEN we took into consideration this aspect of the case, Mr. Gopal Behari learned counsel for the department urged that no ground had been taken in this petition on this basis by the petitioner and therefore the Court should not interfere on such a ground. In our opinion, this contention of Mr. Gopal Behari cannot be accepted. The petitioners no doubt challenged the validity of the notice dated 4-11-1955 on different grounds but these grounds are not being decided by us because we have found that under the Income-tax Act this notice, as it now stands, is not a valid notice and is unenforceable as such. What we are doing is to allow the petitioners prayer for a writ to restrain the proceedings under this notice though on a ground different from those urged in the petition.