SEWALAL DAGA Vs. COMMR I T

JUDGEMENT

(1.) THIS is a reference under section 66 (1) of the Indian Income Tax Act, 1922. The assessment year is 19461 /1947. The assessment was reopened under section 34. The Original assessment was on Chandrabhan Johurmull in the status of an individual. He died in May 1949. On the security of a fixed deposit of Rs. 25,000/- standing in the name of one Luchminarain Maheswari, the assessee, Chandrabhan Johurmull had, obtained, overdraft facilities,

(2.) A notice under section 34 was issued to Sewlal Daga, the assessee's son. In the notice, the assessee was described as "m/s. Chandrabhan Johurmull (Karta Sewlal Daga ). " The notice did not state that it was being issued to Sewlal Daga as the legal representative of Chandrabhan Johurmull, deceased. On behalf of Sewlal Daga, it was contended before the Income Tax Authorities that the notice under section 34 was not served on him as the legal representative of the deceased, and as such, it was illegal.

(3.) THE Appellate Tribunal found that the assessee, in compliance with the notice, filed a return showing his status as "chandrabhan Johurmull, deceased represented by Sewlal Daga". According to the Tribunal, the assessee correctly understood the purpose for which the notice under section 34 was issued to him, in compliance with the notice, filed a return by showing himself to be the legal representative of his father. The tribunal was of opinion that this was a case of waiver of the defect in the notice. It has taken note of the decision of the Bombay High Court in Commissioner of Income Tax, Bombay v. Ramsukh Mohls (1) 27 I. T. R. 54, as also that of the court in Tarak Nath Bagchi v. Commissioner of Income Tax, Bengal (2) 14 I. T. R. 319. It has followed the decision of this court, and stated that the irregularities in a notice issued under section 34 could be waived by a party. The waiver in this case is evident by the filing of a return according to law without any protest in respect of the income concerned.