SADHNA AGRAWAL Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE facts giving rise to this petition under Arts. 226 and 227 of the Constitution are as follows: According to the petitioner, she along with Respondent Nos. 2 to 9 formed a co-ownership for the purpose of constructing godowns at Dewas and earning income therefrom. According to the petitioner, the income earned by the co-ownership from the said property has to be assessed under s. 26 of the IT Act,.1961 (`the Act'), and the petitioner and order co-owners cannot be assessed as an association of persons (AOP). Respondent No. 1 served a notice on 24th March, 1981 under s. 148 of the Act on the petitioner and the other co-owners describing them as AOP and stating that the income of the petitioner and others constituting the AOP in respect of which they are assessable to tax for the asst. yr. 1978-79 has escaped assessment and, therefore, it is proposed to assess them for the said assessment year. THE petitioner and other persons constituting the AOP were directed to file return in the prescribed form within 30 days of the receipt of the notice. THE petitioner in this petition has prayed that the aforesaid notice issued by Respondent No. 1 to the petitioner be quashed as Respondent No. 1 acted without jurisdiction in issuing the said notice. In the return, it is stated that the petitioner and others constituted an AOP and they cannot be said to be co-owners of the property and are not entitled to be assessed under s. 26 as contended by the petitioner.

(2.) HAVING heard the learned counsel for the parties, we have come to the conclusion that this petition is liable to be dismissed on the short ground that the petitioner would be free to raise the question before the ITO that the petitioner and others are co-owners of the property and are entitled to be assessed under s. 26 and that they cannot be assessed as an AOP. The question, if raised, shall be considered by the ITO and if the petitioner is aggrieved by the order passed by the ITO in this regard she can pursue the remedy available to her under the Act. It cannot be said that the ITO, Respondent No. 1, has no jurisdiction to issue of s. 148 of the Act. The petitioner is, therefore, not entitled to any relief in this petition.