MD. SALIM KHAN Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THESE petitions by the legal representatives of one late Israil Khan challenge the validity of the assessment orders passed by the Income Tax Officer relating to different assessment years. The occasion for approaching this court was the issue of notice to the legal representatives by the Tax Recovery Officer, Dibrugarh, to pay the dues. The contention, in all these writ petitions, is that as all the legal representatives of the late Israil Khan, who are said to be 10 in number, were not served with notices Under Section 143 of the Income Tax Act (hereinafter "the Act"), the assessments were null and void and no payment could be demanded on the basis of such assessment orders.

(2.) IN so far as the factual aspect of the case is concerned, it may be stated that the late Israil Khan died on September 24, 1971, and was governed by the Sunni School of Mohammadan law. It is also an admitted position that in all the proceedings, one wife and three sons of the late Israil Khan were made parties and were served notices under Section 143(2) of the Act. The contention of the writ petitioners, however, is that as Israil Khan had left 10 heirs, issuance of notice on four of them alone did not satisfy the requirement of law and the assessments made without issuing notices on all the legal representatives are not tenable in law. The aforesaid facts are not in dispute. It is, however, the contention of the Department that notices were issued only on the wife and three sons of the late Israil Khan inasmuch as in the course of a proceeding under the Gift -tax Act (the Gift -tax Officer was also the Income Tax Officer) information was furnished by the authorised representative, Mr. Tibrewal, on August 30, 1974, that the late Israil Khan had left the following legal representatives :

(3.) IT is because of this that the Income Tax Officer issued notices on the aforesaid four persons. It is, therefore, contended by Shri Choudhury for the Revenue that the Income Tax Officer had every reason to believe bona fide that Israil Khan had left the aforesaid four legal representatives only. Shri Saraf, however, brings to our notice annexure -D to the affidavit -in -opposition filed by the Department in Civil Rule No. 529 of 1980 which shows that as per Israil Khan himself, his family members consisted of his wife, four sons and two daughters. This information was given some time in 1970. Learned counsel, therefore, states that even as per the records maintained by the department, notices must have been issued on at least seven persons if not ten. As to this, the reply of Shri Choudhury is that out of the four sons, one had died some time in 1972 and two daughters were minors at the relevant time. In so far as the minor daughters are concerned, it is submitted by Shri Choudhury that they were duly represented by their mother. In this connection, our attention has been invited to the gift -tax return filed by Israil Khan for the assessment year 1968 -69 in which three minor sons were said to have been represented by their mother and guardian, Bunnat Khatoon. It is because of this that notices were issued only on the wife and three sons of Israil Khan. This being the position, we are of the view that when notices were issued on four legal representatives only of the deceased, it cannot be held that the Income Tax Officer had acted without diligence or had not applied his mind to this aspect of the case properly and duly.