HAJI ABDUL GAFFAR Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner, who is an income-tax assessee, has filed this petition under Articles 226 and 227 of the Constitution of India to quash the notice dated March 18, 1981 (annexure-O), issued to him under Section 148 of the I.T. Act, 1961, for reopening his assessment for the assessment year 1972-73 under Section 147(a) by respondent No. 1, the ITO, E-Ward, Indore.

(2.) THE petitioner's case, as stated in the petition, may be stated, in brief, thus: THE petitioner is a partner of the firm, M/s Yonus & Iqbal Co. THE only source of income of the petitioner is the share income from the said partnership concern and he has no other source of income nor any immovable property. THE petitioner is being regularly assessed to income-tax from the assessment year 1951-52 on the share income from the firm, M/s Yonus & Iqbal Co. THE petitioner filed his return for the assessment year 1972-73 before the ITO, M-Ward, Indore, who, at the relevant time had the jurisdiction in respect of the petitioner, by his order dated December 23, 1972, completed the assessment of the petitioner against which no appeal was filed. Accordingly, the petitioner continued to file his return for the assessment year 1973-74, which was also completed on March 2, 1974.

(3.) FURTHER, according to the petitioner, the assessing authority in his case as also that of his mother was the same, namely, the ITO, M-Ward, Indore. Thus, even though the petitioner was being assessed up to the assessment year 1974-75 only in respect of his share income and the petitioner's mother up to the assessment year 1974-75 was also assessed only in respect of the rental income from the said two houses, the ITO in the course of the assessment of the petitioner for the years 1975-76 and 1976-77, for the first time sought to assess the rental income from the two houses in the hands of the petitioner on the ground that the ownership of the said two houses was that of the petitioner and not of his mother. Accordingly, the ITO included the rental income from the two houses in the assessment of the petitioner for the assessment years 1975-76 and 1976-77, by his orders dated March 30, 1978, and March 6, 1979. The assessments of Hajjani Zulekhabai for the assessment years 1975-76 and 1976-77 were also going on simultaneously before the same ITO who assessed her on the rental income of the two houses in respect of these two assessment years by his order passed on March 27, 1978.