LALTA PRASAD GOENKA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN respect of the asst. year 1950 51, the assessee had filed a return of income on May 30, 1951, which was signed by his manager. A fresh return, however, came to be filed on 30th March 1953. The assessment was completed on 30th March, 1955. The conduct of the assessee prior to the completion of the assessment has been adversely commented upon by the ITO, the AAC and the Tribunal. Notices under ss. 22(4) and 23(2) of the Indian IT Act, 1922, were issued to the assessee after March, 1953, after no effective response was received by the ITO in respect of his earlier notices. It was only on 17th of February, 1955, that the assessee admitted receipt of notices under ss. 22(4) and 23(2) of the Act and by that letter he informed the ITO that he had filed returns with the ITO, Calcutta. The ITO, Gwalior, who was in charge of the assessment was requested by the assessee to transfer his case to the ITO, Calcutta. However, on inquiry the ITO, Gwalior, did not find that there was any assessment case pending with the ITO, Calcutta, and the ITO, Gwalior, therefore, fixed the case for hearing on 21st March, 1955, and sent a telegram to the assessee communicating the date. On this, the assessee informed the ITO, Gwalior, that his file has been transferred to the ITO, Delhi. The ITO, Gwalior, made inquiries with the ITO, Delhi, who requested him to complete the assessments, which were getting barred by time, and then to consider the question of transferring the files of the assessee to Delhi in April of 1955. The ITO, Gwalior, then completed the assessment of the assessee on 31st March, 1955, and also issued notice under S. 28 (3) for the assessee's failure to comply with the notices under ss. 22(4) and 23(2) of the Act.

(2.) THE assessee's quantum appeal came to be decided by the AAC on 30th July,1960. In the meantime, the case of the assessee had been transferred to Delhi in April, 1958. From there the case was subsequently transferred to Bombay and it was the ITO at Bombay who noticed that penalty proceedings were still pending against the assessee. When the ITO took up the penalty proceedings, two objections were taken before him. One was that the assessment order dated 31st March, 1955, was in the name of M/s Agarwal and Co. (proprietor, Shri Lalta Prasad Goenka, Naya Bazar, Laskar) while the penalty order was made in the name of Lalta Prasad Goenka. The other objection was that the notice under S. 28(3) was issued as far back as on 31st March, 1955, and in view of the decision of the Allahabad High Court in Mohd. Atiq vs. ITO (1962) 46 ITR 452 (All), the proceedings must be held to be barred by time. Both these contentions were negatived by the ITO who found that the maximum penalty under S. 28(1)(b) worked out to Rs. 62,644. He,however, imposed a penalty of Rs. 25,000 only.

(3.) THE first contention raised on behalf of the assessee by Mr. Dwarkadas is with regard to the validity of the order of penalty. It is contended that the assessment is made in the name of M/s Agarwal & Co., the notice under S. 28(3) was also issued in the name of M/s Agarwal & Co. while the order of penalty is made in the name of Lalta Prasad Goenka, proprietor, M/s Agarwal & Co. It is difficult for us to entertain such a submission because there is no difference so far as the assessee is concerned, as he is named in the order of assessment and in the order of penalty the assessee who has been assessed to tax is Lalta Prasad Goenka, who is the proprietor of M/s Agarwal & Co. The penalty order is also against the same person. Merely because in the assessment order the trade name of Lalta Prasad Goenka is given, the trade name does not become the assessee and in fact the assessee was only Lalta Prasad Goenka.