AMINCHAND PYARELAL Vs. GIFT TAX OFFICER

JUDGEMENT

(1.) THE present rule was issued on 18th Dec., 1978, at the instance of the writ petitioners, praying, inter alia, for a writ of mandamus commanding the respondents to cancel, withdraw, rescind and/or quash the notices dt. 3rd Nov., 1976 issued under s. 16(1)of the GT Act, 1958, and the notices dt. 25th May, 1978, 7th July, 1978, 7th Aug., 1978, 26th Sept., 1978, 7th Nov., 1978 & 8th Dec., 1978, for the asst. yrs. 1973-74 and 1974-75 and all proceedings thereunder. The impugned notices have been addressed to M/s Aminchand Pyarelal, registered under the Partnership Act, 1932.

(2.) DR . Pal, learned advocate appearing for the petitioners, has argued that the petitioners are not raising any question as to the merits of the matter. Instead, the question of jurisdiction is raised as to the issuance of the impugned notices addressed to the petitioner, a partnership firm. According to him, a partnership firm is not liable to be assessed in respect of any gift under the GT Act and, as such, respondent No. 1, the GTO, Central Circle III, Calcutta, has no competence, jurisdiction and/or authority to issue the intended notices and to assume jurisdiction under the said Act for the purpose of making any assessment under the GT Act upon the writ petitioners. Further, since the petitioners are not liable under the GT Act, the impugned notices are bad in law. In support of his contention, Dr. Pal, learned advocate for the writ petitioners, has drawn the attention of the Court to s. 2(xviii) of the GT Act, to indicate that a "person" includes an HUF or a company or an AOP or a BOI or persons, whether incorporated or not. Looking to the said definition, partnership firm cannot be termed a BOI or an association. By way of analogy, the attention of the Court has been drawn to the definition of "person" in the IT Act, 1961, which includes :

(3.) MR . Prosad, learned advocate appearing for the respondents, being the gift-tax authorities, has fairly conceded that, within the definition of the GT Act, there is no expression of a firm to be included as a person against whom the impugned notices can be addressed.