BADRUNNESSA KHATOON Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) Nawab Musharaff Hussain had considerable properties. He died in 1966. He died leaving behind him two daughters, namely, the petitioner herein and one Kamrunnessa Khatoon. The said Kamrunnessa Khatoonhad died in 1976. According to the petitioner the said Nawab Musharaff Hussain did not leave any property or asset at the time of his death. The wife of Nawab Hussain, Begum Faizunnessa Khatoon, had died in 1962. But the case of the revenue authority is that there was an association of persons consisting of Begum Faizunnessa Khatoon, Nawabjadi Kamrunnessa Khatoon, Nawabjadi Badrunnessa Khatoon, the present petitioner herein, and Nawab Mushraff Hussain. This association of persons, according to the revenue, was assessed to tax for several years. Indeed, they were assessed to tax for 1952-53, 1961-62, 1954-55, 1955-56, 1956-57, 1957-58, 1962-63 and 1966-67. I am, however, not concerned in this application under Article 226 of the Constitution with any attempt for recovery on account of the tax dues for the assessment years 1952-53 and 1961-62. In this application under Article 226 of the Constitution, the petitioner challenges the recovery proceedings in respect of the assessment years 1954-55, 1955-56, 1956-57, 195-7-58, 1962-63 and 1966-67.

(2.) The main grievance of the petitioner was that there was no demand notice served upon the petitioner or upon the assessee for initiating the proceedings for recovery of taxes. It was contended that unless and until an assessee was in default or deemed to be in default, certificate could not be forwarded for the recovery of the demand in respect of any amount. It was further urged in this case that there was no notice of demand served upon the petitioner. In support of the proposition that without service of any demand notice the assessee could not be treated to be in default or deemed to be in default, learned advocate for the petitioner sought reliance on several authorities. In my opinion, this position is well accepted that before the certificate proceedings can be initiated or steps taken for recovery of the dues, there must be notice of demand served. The question, therefore, is whether in the instant case the notice of demand had been served. That, in my opinion, is clear. It appears that for the assessment year 1954-55, the assessment had been made under Section 144 read with Section 147(a) of the I.T. Act and the assessment was made and demand notice was served on the 24th March, 1975, by personal service. The original demand notice was produced before me for the said assessment year and it appears from the said demand notice that it was served by personal service by receipt of the addressee or on behalf of the addressee. For the assessment year 1955-56, similar is the position. For the assessment year 1956-57 also, the position appears to be the same. For the assessment year 1957-58, the position appears to be the same and for the assessment years 1962-63 and 1966-67, the assessment orders were served on the 3rd May, 1975, and these were served by affixation on the refusal of the assessee to accept the service, or failure to find out the assessee. The original returns of the service of notice were produced before me. It appears, therefore, that there has been services of the notice of demand as required by the law before initiation of the proceedings for certificate.

(3.) Learned advocate for the petitioner, however, drew my attention to certain observations in the case of E. Alfred v. First Addl. ITO [1957] 32ITR 401 (Mad). He contended that notice of assessment or reassessment must be served on all the legal representatives. I think there is misapprehension in this respect. The petitioner was being proceeded against both as legal representative of some of the members of the association of persons as well as herself being a member of the association of persons. Therefore, she herself was a member of the association of persons and if that association of persons had been served with notice of demand of the assessment, then the fact that subsequently the notice of demand had not been served on all the legal representatives of the other members of the association of persons does not, in my opinion, vitiate the certificate proceedings.