JAGADISH MITTER K Vs. REVENUE DIVISIONAL COMMISSIONER

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India to strike down Section 222 of the Income-tax Act, 1961, as ultra vires the Constitution and to quash the proceeding for recovery of the income-tax dues.

(2.) THE case of the petitioner may be stated as follows : THE petitioner purchased some stock-in-trade on July 1, 1963, from M/s. Hunsraj & Brothers which is a defunct firm. On March 29, 1968, he was assessed under Section 144 of the Income-tax Act, 1961 (hereinafter mentioned as "the Act"), to the tune of Rs. 38,454 for the assessment year 1963-64, as the successor of M/s. Hunsraj & Brothers. THE demand notice, assessment order, etc., were not served on M/s. Hunsraj & Brothers. Proceeding for recovery of dues was started by the Tax Recovery Officer of Nawarang-pur against the petitioner. He appeared before the Tax Recovery Officer and objected that he was not the successor and was not liable to pay the tax. On January 28, 1969, the objection of the petitioner was overruled on the ground that the validity of the assessment cannot be questioned before the Tax Recovery Officer. Petitioner filed appeal under Rule 86 of the Second Schedule of the Act before the Revenue Divisional Commissioner, Berhampur, which was dismissed on May 15, 1971.

(3.) POINT No. 2:--It is contended by Mr. Rath that the petitioner only purchased the stock-in-trade and the ownership of the firm was not transferred to him and according to Section 170 of the Act he can be assessed only if he has succeeded to the ownership of the firm and if the predecessor-firm cannot be found out by the department.