TMI Blog1995 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... very of the amount of Rs. 18,161 as the petitioner cannot be deemed to be an assessee in default. The petitioner, Smt. Shantidevi, is a partner in the firm, Hiralal Gulabchand Sethi, Ashok Nagar, District Guna. We are concerned with regard to the assessment year 1976-77 and the relevant accounting year ended on Diwali, 1975. The petitioner submitted a return of total income before respondent No. 1-Income-tax Officer, C-Ward, Sagar, showing a total assessable income of Rs. 14,358 which included a share income from the partnership firm, Hiralal Gulabchand, amounting to Rs. 17,692. In the statement attached to the return, a note was given that her two minor daughters, namely, Ku. Lalita and Meena, were admitted to the benefits of partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 26, 1984 (annexure " F "), was served on the petitioner. A recovery notice dated April 5, 1980 (annexure " G ") was issued to the petitioner. The petitioner filed a reply and submitted that since the objections filed by the petitioner to the assessment under section 143(1) have not been decided she cannot be treated as a defaulter nor is there a case of suppression of facts or escaped assessment or underassessment. The petitioner filed this petition challenging both the notices/orders (annexures " F " and " G "). Shri B. L. Nema, learned counsel for the petitioner, has submitted that both the notices/orders (annexures " F " and " G ") are bad because section 147(a) of the Act can only be invoked on account of an omission or failure on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a defaulter in respect of the whole or any part of the tax demanded in pursuance of the assessment. Therefore, it cannot be said that the petitioner is a defaulter. It was the duty of the Assessing Officer according to the provision to section 143 which was existing at the relevant time to have decided the matter within a reasonable time and that was not done and the matter remained pending for years and then thereafter in 1984, the respondents woke up to give a notice to the petitioner under section 147 of the Act. Section 147 of the Act which stood at the relevant time before it was amended on April 1, 1989, notices could have been issued under the aforesaid section if there was omission or failure on the part of the assessee to made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... children within time then it was open for the respondents to effect the recovery. But it was not done and they only woke up while issuing notice under section 147 of the Act. But by that time more than two years lapsed. A taxpayer cannot be allowed to suffer on account of negligence of the Department. The notice (annexure " G ") to the petitioner for effecting the recovery as a defaulter also lapses. Hence, no recovery in pursuance of this order (annexure " G ") could be made. In the result, this writ petition is allowed. The notices/orders (annexures " F " and " G ") are quashed and all other orders consequent to that are also quashed. The amount of security deposited, if any, shall be refunded to the petitioner. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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