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TMI Blog2008 (6) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... cts which are not in dispute are that all the 15 persons jointly purchased lottery tickets, each having an equal share therein i.e. 1/15th each. Out of many tickets so purchased by the 15 individuals, one lottery ticket turned out to be a winning ticket bearing No. JM 2606390 for a sum of Rs.25,00,000. In the return of income filed by Shri Kanchanlal Maganlal (individual) under the head "Income from other sources" income from winning of lottery at 1/15th share to the tune of Rs.1,66,667 was shown and statutory deduction therefrom was claimed. The Assessing Officer, vide notice under section 142(1) of the Act along with letter of the same date called for following particulars: "In connection with your assessment proceedings, the following p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (iv) The prize amount was deposited in Savings Account No.K-2348 with State Bank of India on 17th February, 1986, from where it was disbursed to all the co-sharers equally on February 18, 1988." 4. The assessee- individual also placed reliance on the apex court decision in the case of G. Murugesan and Brothers v. Commissioner of Income-tax [1973] 88 ITR 432 by addressing the Assessing Officer in following terms: "As per the decision of honourable Supreme Court in the case of G. Murugesan and Brothers v. CIT [1973] 88 ITR 432, such a case where lottery tickets are purchased jointly does not constitute on AOP. Since, the essential ingredients of an AOP are not present, photo copy of the gist of the said judgment is enclosed herewith." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout jurisdiction. Referring to the aforesaid facts recorded hereinbefore it was submitted that all the 15 individuals had duly shown 1/15th share each and as could be seen from the case of individual. Shri Kanchanlal Maganlal, after thorough inquiry and application of mind, the Assessing Officer had assessed 1/15th share of the prize winning money in hands of the individual. That, in fact, the petitioner had, in response to notice under section 142(1) of the Act, invited attention to the correct legal position by adverting to the decision of the apex court in case of G. Murugesan and Brothers [1973] 88 ITR 432 and, therefore, even in law, the stand taken by the assessee- individual was justified and there was no entity like Shri Kanchanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on part of the assessee to file a return of income under section 139 of the Act, or there has to be a failure to respond to a notice under section 142(1) / 148 of the Act, or to disclose fully or truly all material facts necessary for the assessment of the assessment year in question. The reasons recorded as per extract appearing in the affidavit-in-reply by the respondent read as under: "The above AOP has won the prize of lottery of Maharashtra State bearing No. JM 2606390 in which draw was held on 15.11.1985, and prize amounting to Rs.25 lakhs is paid by concerned authority as per their regulation in the record. The AOP has neither filed any return of income nor declared it for taxation. Hence, I have reason to believe that there is esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cket. All 15 persons have discharged the said lottery ticket by appending their signatures on the reverse side of the lottery ticket. The receipt issued by the authority of Maharashtra State Lottery categorically indicates that the claim of prize winning ticket was made by 15 individual persons. Hence, it is apparent that 15 persons, in their individual capacity, had acted in unison and evidence thereof was available before the Assessing Officer at the time of original assessment. The Assessing Officer had applied his mind to the said aspect of the matter when along with notice under section 142(1) of the Act by a separate letter of even date details of all the 15 persons were called for along with evidence in support of the claim that indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dends were received by joint shareholders. 14. In the circumstances, it is not possible to accept the stand of the respondent-authority that there was any obligation on an entity by the name of Shri Kanchanlal Maganlal Kapadia and 14 others members (AOP) to tender a return of income under the provisions of the Act. In the absence of any obligation in law it is not possible to state that there was any failure or omission on part of the petitioner to file a return of income. Once there was no failure on part of the petitioner to be treated as an assessee under the provisions of the Act the impugned notice under section 148 of the Act which was admittedly issued beyond a period of four years from the end of assessment year 1986-1987 could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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