HARDEODAS JAGANNATH Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner, Hardeodas Jagannath is a partnership firm carrying own business at Mawkhar, Shillong, in the district of United Khasi and Jaintia Hills. By an order dated March 14, 1959, the Income-tax Officer, Shillong, who has been amplitude as opposite party No. 1 to this petition assessed the petitioner under section 23(4) of the Indian Income-tax Act (hereinafter called the Act), for the assessment year 1958-59. THE total estimated income was Rs. 9 lakhs and the tax demanded was Rs. 63,750 from the petitioner. THE income of the firm was allocated according to the shares of the two partners J. N. Bawri and N. M. Bawri at Rs. 4,50,000 each. By this petition under article 226 of the Constitution it is prayed : (1) that a writ of mandamus be issued calling upon the respondent to withdraw and cancel and forbear from giving effect to the notice under sections 28(3), 46(5A) and proceedings under section 46(2) of the Act; (2) a writ of certiorari calling upon the respondent to send for the records of the case and quash the assessment for 1958-59; and (3) a writ of prohibition calling upon the respondent to cancel and forbear from giving effect to or in any way to take any steps in respect of the notices issued under sections 28(3) and 46(5A) and proceedings initiated under section 46(2) of the Act.

(2.) BRIEFLY the facts on which the petitioner has based his claim are that on January 20, 1959 a notice purporting to be one under section 22(4) of the Act was issued against the petitioner which was served on it on or about January 24, 1959. By this notice the petitioner was called upon to produce account books and bank pass books for the Sambat year 2014 being the previous year for the assessment year 1958-59, on January 29, 1959. Although there is no mention of the date of the service of the notice under section 22(2) of the Act in the notice issued under section 22(4) it is asserted by the opposite party that a notice was issued on May 31, 1958 under section 22(2) of the Act calling upon the applicant to submit his return of the total income. The notice, according to the opposite party was served on the petitioner on July 3, 1958. On January 27, 1959 the petitioner applied for the adjournment of the proceedings initiated by the notice under section 22(4) and the time was extended up to February 27, 1959. At this stage, there is some controversy between the parties as to the actual facts. According to the petitioner on February 27, 1959, Sri K. M. Brahmin advocate appeared on behalf of the petitioner before the opposite party No. 1 and the case was adjourned to March 12, 1959. The respondent denies that Shri K. M. Brahmin ever appeared before the Income-tax Officer on February 27, 1959, and thereafter the case was adjourned for March 12, 1959.

(3.) COPIES of these notices were received by the petitioner on April 24, 1959. Certificate under section 46(2) was also issued to the Collector by respondent No. 1. On April 29, 1959, the application under section 27 was fixed for hearing. On that date Sri Sarma the advocate for the petitioner, asked for the inspection of the service report or acknowledgment in token of the alleged service on the petitioner of the notice under section 22(2); but according to the petitioner the inspection was refused. On April 26, 1959, the petitioner made another application to respondent No. 1 to know about the orders passed on his previous application for the stay of realisation.