BALCHAND MALAIYA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioners in this petition were members of an HUF and assessed to income-tax under the Indian Income-tax Act, 1922, for the assessment years 1953-54 to 1958-59, THEre was a partition in the petitioners' family by a registered document dated 10th November, 1958. THE ITO by his order passed on the 10th March, 1964, refused to recognise this partition under Section 25A(1) of the 1922 Act. THEre was an appeal filed against this order which was allowed on 11th January, 1967, by the AAC. After this order of the AAC by which the partition was recognised under Section 25(1) of the 1922 Act, proceedings for rectification of the earlier assessments were taken by the ITO. In these proceedings notice was issued only to petitioner No. 1, Balchand Malaiya, who before the partition was karta of the family. THE other petitioners were not noticed in these proceedings. By orders dated 8th July, 1974, assessment orders earlier passed were revised and the tax liability of the petitioners was apportioned in accordance with the shares in the joint family property which they had received under the partition. THE tax assessed for the year 1953-54 to 1955-56 was nil. In pursuance of the assessment orders passed for the years 1956-57 and 1958-59, demand notices were issued against all the petitioners. THE petitioners then filed this petition for quashing of the assessment orders passed by the ITO on 8th July, 1974, and the demand notices which are issued in pursuance to these orders. During the pendency of this petition, petitioner No. 1 filed appeals against the assessment orders passed on 8th July, 1974. By order dated 17th January, 1979, passed by the AAC, the appeals for the assessment years 1953-54 to 1955-56 and 1956-57 were allowed. By another order passed on 21st March, 1979, the appeal was partly allowed in respect of the assessment year 1958-59. Curiously enough the appeal against the assessment order for the year 1957-58 was dismissed on 8th February, 1979, as not maintainable. THE Department has gone in appeal to the Tribunal against the order of the AAC dated 17th January, 1979, and 21st March, 1979, allowing the appeals for the years 1953-54, 1955-56, 1956-57 and 1958-59. Petitioner No. 1, Balchand Malaiya, has gone in revision against the order dated 8th February, 1979, dismissing the appeal for the assessment year 195-7-58.

(2.) IN view of the facts stated above, the relief claimed in the petition for quashing of the assessment orders dated 8th July, 1974, passed by the ITO for the years 1953-54, 1955-56, 1956-57 and 1958-59, does not survive because these orders have already been set aside by the AAC in appeal. As a consequence of the setting aside of these assessment orders by the AAC, the demand notices issued for the years 1956-57 and 1958-59 became invalid and cannot be enforced by the Department. These notices have, therefore, to be quashed.