SADHANA AGRAWAL Vs. COMMISSIONER OF INCOME TAX

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 the respondents 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 and the petitioner and other co-owners cannot be assessed as an AOP. The respondent No. 1 served a notice on 24th March, 1981 under S. 148 of the IT 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 the respondent No. 1 to the petitioner be quashed as the 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 of the IT Act 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 of the IT Act, 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 IT Act. It cannot be said that the ITO respondent No.1, has no jurisdiction to issue the impugned notice under the provisions of S. 148 of the IT Act. The petitioner is, therefore, not entitled to any relief in this petition.