UNION OF INDIA Vs. BIKASH CHANDRA GHOSH

JUDGEMENT

(1.) It appears that for the assessment year 1957-58, notice under Section 22(2) of the Indian Income-tax Act, 1922, hereinafter referred to as "the said Act", dated 20th March, 1958, was issued in the name of Sri H. Talukdar, receiver to the estate of Messrs. Surendra Nath Sarkar & Others. A notice under Section 22(4) dated 15th May, 1959, was also issued in the name of Sri Talukdar. A similar notice under Section 22(2) dated 20th March, 1958, was also issued in the name of Messrs. Surendra Nath Sarkar and Ors. and another notice Tinder Section 22(4), dated 20th August, 1961, was issued in the name of Sri Mihir Kumar Sarkar for and on behalf of other members of the Hindu undivided family consisting of the sons and heirs and legal representative of the late Surendra Nath Sarkar, the late Bidhu Bhusan Sarkar and the late Ganapati Sarkar. Thereafter, a further notice addressed to the said Sri Talukdar was also issued with a forwarding letter on the 30th August. There was no compliance with the terms of the said notice under Section 22 (4) of the said Act and the assessment was completed under Section 23(4) read with Section 41 of the said Act. The status of the assessee has been mentioned as the Hindu undivided family. It is necessary to point out the exact expressions used in the assessment order which are as follows:

(2.) The total income assessed was Rs. 1,02,450 and the tax determined to be payable thereon was Rs. 60,881-98. In his letter dated 30th the August, 1961 (in reply to the letter of Mr. Talukdar who had raised the question of the status of the assessee and to which letter this was written in reply) it was observed by the Income-tax Officer, B-ward, Dist. 1(2), Calcutta, that the point of the status has already been settled in the assessment for the year 1956-57 and the status has been determined as that of a Hindu undivided family. The Income-tax Officer referred the fact that there has been no application under Section 25A(1) of the Indian Income-tax Act, 1922. This letter, it has to be borne in mind, was written prior to the completion of the assessment for the assessment year 1957-58.

(3.) As the aforesaid demand remained unpaid a certificate under Section 222 If the Income-tax Act, 1961, was issued on the 23rd March, 1963, in the name of the assessee, Hindu undivided family, represented by the said two receivers, Sri Bikash Chandra Ghosh and Sri H. Talukdar. On the basis of the said certificate, Case No. 44 I.T.B. of 1963-64 was started in the court of the Tax Recovery Officer and the Additional District Magistrate, 24-Paraganas. Objections were filed on behalf of the certificate-debtors contending, (a) that there was no proper service of the notice of demand on the assessee which was not an undivided Hindu family according to Hindu law; (b) the Tax Recovery Officer or an Additional Collector, 24-Parganas, had no jurisdiction over the town of Calcutta; (c) that, on the facts and in the circumstances of the case, the Tax Recovery Officer could proceed only against the receivers but not directly against the assessee as he did. By his order dated 17th August, 1964, the Tax Recovery Officer rejected the objection petition. The Certificate Officer observed that the assessment had been made on Messrs. Surendra Nath Sarkar, Bidhu Bhusad Sarkar and others in the status of a Hindu undivided family and the certificate under Section 222 of the Income-tax Act, 1961, had also been filed against the Hindu undivided family and the names of the members comprising the Hindu undivided family had also been mentioned in the assessment order and the certificate filed under Section 222. The Certificate Officer further observed that he could not go beyond the certificate filed and if there had been a partition of the Hindu undivided family, the matter should have been agitated before the income-tax authorities. The Certificate Officer observed that the demand notice was issued on the Hindu undivided family and was received by one Nagendra Nath Ghosh. The Certificate Officer recorded that it had not been denied that Nagendra Nath Ghosh is a karmachari of the Hindu undivided family. He, therefore, held that there had been a proper service of the notice of demand on the Hindu undivided family. The next contention that was urged before the Certificate Officer was that the Tax Recovery Officer or the Additional Collector, 24-Parganas, had no jurisdiction over the town of Calcutta. After discussion of the relevant provision of the Act he came to conclusion that this objection was without substance. The third contention that was urged before the Certificate Officer was regarding the realisation of tax from the receivers only. The Certificate Officer observed that this objection had not been pressed before him. He further observed that this point had been dealt with by him in his order dated 22nd February, 1964, in connetion with the objection petition of C. D. Mihir Kumar Sarkar. For the reasons aforesaid the Certificate Officer rejected the objections.