COMMISSIONER OF INCOME TAX Vs. KAILASHO DEVI BURMAN

JUDGEMENT

(1.) I think the Tribunal has totally failed to draw the irresistible inference from the facts placed before it. There was no scope for vacillation or giving the benefit of doubt to the assessee. The only conclusion that could be reached from the admitted facts was that the notice of demand was duly and properly served on the assessee. The Tribunal definitely misdirected itself and committed an error on the face of the record by taking the statement of the counsel as evidence before it. The statement of the counsel was to the effect that there was no such person by the name of Phool Singh who had authority to receive any such notice on behalf of the assessee. That could not have been relied on by the Tribunal as evidence before it. If that was the position then the assessee should have come forward to deny such service on cogent evidence and until that was done the Tribunal would have the only option to proceed on the basis of the acknowledgment receipt which showed that the demand notice was duly served on the assessee. If the Tribunal had done so it would have reached the inevitable and inescapable conclusion that the demand notice had been duly and properly served. The Tribunal ought not to have misled itself by relying on the slip which contained a misleading note by an inspector that the correct name of the assessee was "Rash Behari Burman "and not" Rash Behari Das Barman". The Tribunal ought to have taken note of the fact that the assessee had all throughout been assessed as "Rash Behari Das Burman" and the returns filed by the assessee himself would have made the position absolutely clear and free from any doubt. In my opinion, the Tribunal has misdirected itself by taking into consideration irrelevant evidence and by discarding material and legal evidence before it.

(2.) The facts remained that the assessee filed the return for 1955-56 by showing his status as HUF. The assessment form annexed to the demand notice showed that the advance taxes were paid by the assessee in respect of such return. It must follow, therefore, that such advance taxes were paid on the basis of his status as HUF and the amount so paid was duly taken into account in arriving at the balance figure mentioned in the demand notice. That being the position, it could hardly be. contended that the assessment order was not properly signed.

(3.) The Tribunal committed an error on the face when it failed to take into consideration that all that was required under Section 23(3) of the I.T. Act, 1922, was that (a) the assessment must be in writing, and (b) the determination of the amount must be on the basis of such assessment, and that the said requirements were duly complied with as would appear from the records and from the body of the notice of demand which was duly served on the assessee. Accordingly, the requirement of Section 29 was duly complied with. Under such circumstances, the inevitable conclusion that could be arrived at by the Tribunal was that the assessment was duly and properly made on the assessee by showing his status as an HUF for the assessment year 1955-56.