LADURAM TAPARIA Vs. D K GHOSH

JUDGEMENT

(1.) The facts in this case are shortly as follows :

(2.) The petitioner is a firm carrying on business in 'partnership under the name and style of Laduram Taparia. According to the petitioner, it has 3 partners Laduram Taparia, Ganpat Ram Taparia and Bhairodan Maheswar. This firm was registered under Section 26A, Income-tax Act. It was duly assessed as such for the assessment years 1042-43, 1943-44, and 1944-45. In July 1947, the firm submitted a return for the assessment year 1945-46, showing a total income of Rs. 33,105/-, subsequently corrected as Rs. 33,703/. The Income-tax Officer had information that the constitution of the petitioner firm was not genuine, and he refused to continue the registration under Section 26A, Income-tax Act, and assessed the petitioner firm as an un-registered firm. He also added to the total income of the said firm, the total income of 5 other firms, namely, (1) Jagannath Hanumanbux, (2) Jagannath. Harnarayan, (3) Ganpatirai Jorawarmal, (4) Seth Laduram Taparia, and (5) Seth Laduram Taparia & Co. According to the Income-tax Officer, these were not bona fide firms but were benarni businesses carried on for the purpose of depriving the Government of Income-tax. It was found that the total income was Rs. 10,23,388/- and the income-tax payable was Rs. 8,67,239/10/0. These 5 firms were also assessed separately by way of what is known as "protective assessment". On or about the 30th of March, 1950 notice under Section 29, Income-tax Act, was issued upon the petitioner calling upon it to make payment of tax amounting to Rs. 8,67,239/10/0, on or before 28-4-1959. The petitioner firm, as well as the said 5 firms, preferred appeals against their respective assessments, as also against the respective orders refusing registration under Section 26A, Income-tax Act. On or about 26-3-1951 the Income-tax Officer forwarded to the Certificate Officer, 24 Parganas a certificate within the meaning of Section 46(2), Income-tax Act, requesting the latter, to commence proceedings for recovery of the sum of RS. 8, 67, 239/10/0 from the petitioners. On 31-3-1951, a certificate was issued by K. P. Nayak, the then Certificate Officer, 24 Parganas and proceedings were commenced registered as No. 2927 I. T. of 1950/51. The petitioner came up to this Court and made an application under Article 226 for the cancellation of the demand notice, and on or about 26-2-1951 Bose J. granted the Writ. The Government preferred an appeal against the said order and sometimes in January, 1952 the appeal was successful and the order was set aside. On or about 15-7-1952 the Income-tax Officer requested the Certificate Officer to enforce the certificate and on 24-7-1952 notice was issued under Section 7, Bengal Public Demands Recovery Act, and served on the petitioner on the 1st of August, 1952. The notice bore a rubber stamped signature of the Certificate Officer. On 19-8-1952 the petitioner filed objection under Section 9 of the P. D. R. Act. OB 29-11-1952 the appeals preferred by the petitioner against the order of assessment and the order refusing registration, were disposed of by the Appellate Assistant Commissioner of Income-tax, who held that the application for registration was rightly refused. The assessment was however reduced by Rs. 10,756/- On 11-11-1953 respondent 1, D. K. Ghosh withdrew the certificate case to his own file. In the meantime, the Income-tax Officer by his letter dated the 10-4-1953 had informed the Certificate Officer that the revised demand stood at Rs. 8.56,987/13/0. On 27-11-1953 the certificate was amended. In this case the appointment and jurisdiction of respondent 1 has been emphatically challenged. It is, therefore, necessary to mention that on 9-10-1953 the respondent was appointed by Notification No. 20394 L.R. as a Certificate Officer and Additional District Magistrate. It appears that the said respondent was a member of the Indian Administrative Service who had retired and was then re-appointed as aforesaid. On 13-2-1954 two further Notifications were published, one being Notification No. 476 G.A./5C-21/54 whereby the said respondent was vested with powers of a Maistrate of the first class and the other Notification No, 477 G.A./5C-21/54 by which the said respondent was directed to act as an Additional District Magistrate with all the powers of a District Magistrate. Copies of these Notifications have been collectively filed and marked as Ex. "A". I have mentioned above that the assessment was reduced by an order of the Appellate Assistant Commissioner of Income-tax. As against his order, second appeal was taken before the Income-tax Appellate Tribunal. By its order dated 284-1954 the Appellate Tribunal found that the profits of two of the firms, namely, Seth Laduram Taparia and Seth Laduram Taparia & Co. were wrongly included in the said assessment and the total income was reduced by Rs. 1,39,538/-. On 14-3-1954, the Income-tax Office wrote to the Certicate Officer, 24 Parganas as follows :--

(3.) The total demand was mentioned as Rs. 7,23,990/10/0.