TMI Blog1971 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ar serious differences and disputes arose according to the petitioner amongst the members of the family consisting of the heirs of the said Gour Mohan Sirkar, namely, Sm. Chhabi Rani Sirkar and others, Jagatjyoti Sirkar, Ratanlal Sirkar, Kanchanlal Sirkar, Rameswar Sirkar and the youngest brother and also their mother, Smt. Sarashi Bala Sirkar. Rameswar Sirkar is the petitioner in this case. Smt. Sarashi Bala Sirkar, it is stated, filed a partition suit as a result of the said dispute in this court in February, 1957, being Partition Suit No. 532 of 1957. In course of the said suit an arbitrator was appointed by an order of this court and in order to avoid the disputes the business at 89, Chowringhee Road, Calcutta, was treated according to the petitioner as part of the joint family property. Thereafter, all the parties to the said suit effected a settlement to which all of them agreed. Such a mutual and amicable settlement of the properties including the business was decreed by this court in the said partition suit and the business styled as Messrs. P. B. Sirkar Sons, at 89, Chowringhee Road, Calcutta, was allotted to the petitioner and the petitioner was given possession in June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, that is to say, the Hindu undivided family, to file the return and to, disclose fully and truly all materials and relevant facts, there has been escapement of income and there were materials for the Income-tax Officer to issue the notice under section 148 of the Income-tax Act, 1961. This point though taken in the petition was not seriously urged in this application. Counsel for the petitioner then urged that the Hindu undivided family after its dissolution could not be taxed. It was further urged that after a suit for partition had been filed, the Hindu undivided family had been dissolved. Counsel for the Revenue, on the other hand, contended that in the case of families governed by the Dayabhaga system of Hindu law the dissolution of the Hindu undivided family did not take place merely on the institution of a suit for partition or declaration of shares of the parties. In order to effectuate a severance of a Hindu undivided family under the Dayabhaga School of law, something more was required, it was urged. In the context of the facts of this case this broad contention is not necessary to be decided. In the instant case the assessment was sought to be re-opened in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncidentally it calls for decision as to whether the individual members of the Hindu undivided family can be made liable for the alleged income, if any, of the Hindu undivided family during the period when the Hindu undivided family was in existence if that Hindu undivided family had never been taxed before. This is the main contention that was urged in respect of this application. Counsel for the petitioner states that there is no machinery or method by which such assessment can be made. Section 297, clause (d)(ii) of the Income-tax Act, 1961, provides that in respect of any income chargeable to tax which had escaped assessment within the meaning of that expression in section 147 and no proceedings under section 34 of the repealed Act in respect of any such income are pending at the commencement of the said Act, a notice under section 148 may, subject to the provisions contained in section 149 or section 150, be issued with respect to that assessment year and all the provisions of said Act shall apply accordingly. Therefore, in respect of the relevant assessment year the Act of 1961 has to be applied. In this connection reference may be made to section 171 of the Income-tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd severally liable for the tax on the income so assessed. (7) For the purposes of this section, the several liability of any member or group of members thereunder shall be computed according to the portion of the joint family property allotted to him or it at the partition, whether total or partial. (8) The provisions of this section shall, so far as may be, apply in relation to the levy and collection of any penalty, interest, fine or other sum in respect of any period up to the date of the partition, whether total or partial, of a Hindu undivided family as they apply in relation to the levy and collection of tax in respect of any such period." This section is a machinery section and not a charging section and it has been so held in numerous decisions. It is not necessary for me to refer to the same. This section corresponds to section 25A of the Indian Income-tax Act, 1922, with certain amount of variation. It is also not material for me to note the variation, except the variations in sub-section (6) of section 171, which is a new introduction. As mentioned hereinbefore, under section 171(2), in case of an assessment made under section 148, of the Income-tax Act, 1961, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the relevant assessment year in question. It has to be noted thatsub-section (2) of section 171 deals with the cases of assessments under section 143 or section 144 when it is claimed by any member of a Hindu family " assessed as undivided ". Therefore, in order to attract the provisions of sub-section (2) of section 171, it is necessary a Hindu undivided family to have been assessed under the Act prior thereto. Sub-section (3) of section 171 deals with the enquiry mentioned in subsection (2). Sub-section (4) also deals with similar enquiry and subsection (5) also deals with the said enquiry. Sub-section (6) of section 171 provides: " Notwithstanding anything contained in this section, if the Income-tax Officer finds after completion of the assessment of a Hindu undivided family that the family has already effected a partition, whether total or partial, the Income-tax Officer shall proceed to recover the tax from every person who was a member of the family before the partition, and every such person shall be jointly and severally liable for the tax on the income so assessed. " In this case, as mentioned hereinbefore, no assessment has been made. In this case also, this Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt further observed that the Supreme Court had not laid down that a family not previously assessed to tax might be assessed after partition in the status of the family until an order under section 25A(1) was passed by the Income-tax Officer. In the context of the position, therefore, that apart from section 171 of the Income-tax Act, 1961, and perhaps to a certain extent, sub-section (4) of section 170 of the Income-tax Act, 1961, there is no machinery to assess a Hindu undivided family which had disrupted and the said machinery provides only in the case of " families hitherto assessed as undivided ", it is difficult to find any machinery to assess a Hindu undivided family which had never been assessed before, after it had disrupted. A Hindu undivided family is a taxable entity and is a juristic person. It can only be proceeded against in the manner provided in the Act or under the general principles of the Hindu law after the disruption of the family. The general law does not provide for any machinery to determine the liability of the individual members of the undivided family before disruption. The income-tax Act, 1961, and the Indian Income-tax Act of 1922 do not also provide t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process-server has used the language " he " in relation to Smt. Sirkar. I will not make much of the transformation of the gender of Smt. Sarashi Bala Sirkar. But for the assessment year 1958-59 the process-server stated that he made attempts to find out Smt. Sarashi Bala Sirkar on 30th March, 1966, but could not find her and as such the notice was affixed. Smt. Sirkar had died prior thereto. Unfortunately for the department, the department has not been given the power to make a dead person alive to receive a notice of the department. Leaving aside this aspect of the matter, the question is, was there any reasonable attempt to serve the notice ? Under section 282 of the Income-tax Act service has to be in the manner as provided in the Code of Civil Procedure. Under the Code, the service can be made by affixation but either after reasonable attempts had been made to find the assessee but could not be found or after the assessee had refused to accept service. What is reasonable attempt must of course be determined on the facts and circumstances of each case. Counsel for the petitioner drew my attention to the decision in the case of Commissioner of Income-tax v. Thayaballi Mulla Jeeva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33B of the Indian Income-tax Act, 1922. The Supreme Court observed that the notice was affixed at two places of which the addresses were furnished by the assessee in his returns, and it was not suggested that the assessee was not carrying on his business at those two places. It was held that there was a proper service of notice. The Supreme Court further observed that if the assessee had any grievance about the sufficiency of the opportunity given to him to make his representations, his obvious remedy was to appeal against the order under section 33B of the 1922 Act. The service of the notice under section 33B of 1922 Act is not mandatory. What is mandatory is that the assessee should be given reasonable opportunity. How that reasonable opportunity should be afforded to the assessee would depend upon the facts and circumstances of each case and as to whether reasonable opportunity has been granted or not to a particular assessee in a particular case the Supreme Court observed that the Income-tax Act provided the machinery, resort to which must be made in the first instance. Here, the service of the notice under section 148 is mandatory and is a condition precedent to the initiation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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