9911796707
TMI Blog1969 (12) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons in support of the issue of the impugned notice have been disclosed in paragraph 5 of the affidavit of Sukumar Bose affirmed on the 30th April, 1969. The substance of the allegations is that the petitioner and one D. J. Dastur were said to be partners of a firm called Girdhardas Maheswari & Company which was assessed as an unregistered firm in the assessmemt year 1946-47. According to the said affidavit, it is claimed by the assessee that the firm has dissolved in the year 1947. It is further alleged that, in or about 1963, it came to the notice of the Income-tax Officer that there were certain cash credit entries in the books of the firm to the extent of Rs. 1,85,000 said to have been received from Shri P. D. Himatsingka and Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Reliance was also placed on a decision in the case of Commissioner of Income-tax v. A. W. Figgies & Company. This proposition of law was not disputed on behalf of the revenue. It was further pointed out on behalf of the petitioner that, assuming that the firm of Girdhardas Maheswari & Company has been dissolved, it does not justify reopening of the assessment of the petitioner on the facts alleged. Reference is invited in this connection to section 189 of the Act which provides, inter alia, that where any business by a firm has been discontinued or where a firm is dissolved, this Income-tax Officer an assessment of the total income of the firm as if no such discontinuance or dissolution has taken place and all the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequently, it is contended that the impugned notice under section 148 of the Act should be held to be without jurisdiction and void. Mr. Dipankar Gupta appearing on behalf of the revenue drew my attention to section 183 of the Act which provides that the income of the firm may, under certain circumstances, be assessed in the hands of a partner. It was submitted that in view of the provisions of section 183, the income of the firm has a rational connection and a relevant bearing on the individual assessment of a partner. Under certain circumstances, if there is non-disclosure by the firm it amounts to non-disclosure by the partners. Hence, the reasons given in support of the reopening of the assessment of the petitioner to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case. In that view of the matter, it must be held that the impugned notice is without jurisdiction and void. Having regard to my finding on this question, it is not necessary in the present application to decide the wider question as to whether the provisions of section 155 of the Act would exclude the operation of section 147 thereof. In the result, the application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall, cancel and withdraw the notice dated the 27th March, 1963, under section 148 of the Act and also the notices dated the 20th March, 1967, issued under sections 142(1) and 143(2) of the Act and a writ in the nature of prohibition restr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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