TMI Blog1978 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... said members of the joint family formed a partnership firm under the name and style of Messrs. Bhimraj Banshidhar and carried on business at the same premises, viz., 180, Mahatma Gandhi Road, Calcutta. The fact of the partial partition and the constitution of the firm were accepted by the income-tax department. Both the entities, viz., the HUF after the partial partition and the partnership business which was a registered one, continued to be assessed by the same ITO at all material times. On July 11, 1956, this firm was dissolved. Subsequent facts are not really material for the purpose, of deciding the sole contention that was raised on behalf of the petitioner to which I shall advert presently. Mr. Murarka, appearing on behalf of the applicant, submitted that the notice was vague because at the relevant time, for which the assessment is sought to be reopened, viz., the assessment year 1948-49, there were two separate and distinct entities as I have mentioned above, viz., the HUF and the registered partnership business, both having the Same name of " Bhimraj Banshidhar " and having the same address, viz., 180, Mahatma Gandhi Road, Calcutta. The notice does not indicate as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned notice in the present case is vague and not a valid one and, therefore, incapable of being given effect to. In view of my finding on the above question, I refrain from dealing with any other ground which has been taken in the petition as well as in the affidavits. I make it clear that I am not expressing any opinion on any other question except the one referred to above. The rule nisi itself provided that the respondents would be at liberty to proceed with the assessment pursuant to the notice but will not communicate or enforce the order of assessment in any manner whatsoever. The rule further provided that the order of assessment shall abide by the result of this rule. Mr. Sengupta for the revenue states that, pursuant to the liberty given in the rule nisi, the order of assessment in the present case has been completed. Since I am quashing the notice, the order of assessment would necessarily have to be quashed along with it. In the view that I have taken, the application must succeed and the rule must be made absolute. There will be a writ in the nature of mandamus directing the respondents to recall, cancel and withdraw the notice dated the 18th March, 1965, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 956, the said firm was dissolved by mutual consent of the partners of the said firm. On and from July 11, 1956, two new partnership firms were constituted under two separate deeds of partnership both dated 11th July, 1956, as follows : (a) " Messrs. Bhimraj Banshidhar " having its registered office and place of business at 2nd floor, 180, Mahatma Gandhi Road, Calcutta-7, consisting of Chandi Prasad Modi and Jagmohan Modi as partners ; (b) " Messrs. Bhimraj Nagarmal " having its head office and place of business on 2nd floor, 180, Mahatma Gandhi Road, Calcutta-7, consisting of Shankarlal Modi and Ram Swarup Modi as partners. The said firm " Messrs. Bhimraj Banshidhar " was dissolved on June 26, 1968. By the deed of dissolution the appellant acquired absolute right, title and interest in the business, name, goodwill and assets and liabilities of the said firm of Messrs. Bhimraj Banshidhar and since then he has been carrying on business at 2nd floor of 180, Mahatma Gandhi Road, Calcutta-7, under the name and style of Messrs. Bhimraj Banshidhar as the sole proprietor thereof. On or about March 23, 1965, the impugned notice dated March 18, 1965, issued by the said ITO under s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 was vague. It has been contended that whether a notice is vague or not has to be decided by the fact whether the assessee is misled by such notice. It is the understanding of the assessee that has to be seen. It is submitted that the acknowledgment slip of the registered post by which the said notice was sent clearly showed the income-tax file number of the HUF. It was further submitted that as the partnership firm of " M/s. Bhimraj Banshidhar " was dissolved in the year 1947 and the said notice was given for reopening of the assessment for the assessment year 1948-49, it was clear that the impugned notice was for the HUF. Referring to para. 6 to the affidavit of Kanhaiyalal Sharma affirmed on the 2nd September, 1972, counsel submitted that Sharma had authority to receive notices on behalf of the HUF as also the partnership firm and in the instant case the notice was received and accepted by him and, in the facts and circumstances of this case, it was quite clear to the person receiving the notice that the same was intended for the HUF. It was also the contention of the counsel that non-mentioning of the status of the assessee would not vitiate the notice. In support of his abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated by the ITO any mistake in respect of any material particular in the notice would invalidate the same. According to counsel, the admitted position in the instant case is that neither the status of the assessee nor any file number or other fact is stated in the notice. There was nothing to indicate whether the said notice was intended for the HUF or the partnership, both of whom at the relevant time carried on business under the name and style of " Bhimraj Banshidhar " at the same place, i.e , 180, Mahatma Gandhi Road, and were separately assessed and all these facts were known to the ITO. Therefore, according to counsel, no jurisdiction could be lawfully assumed pursuant to such an invalid notice. In support of his above contention counsel has referred to the cases of Kurbanhussein Ibrahimji Mithiborwala v. CIT [1968] 68 ITR 407 (Guj), Shyam Sundar Bajaj v. ITO [1973] 89 ITR 317 (Cal), Sewlal Daga v. CIT [1965] 55 ITR 406 (Cal) Rama Devi Agarwalia v. CIT [1979] 117 ITR 256 (Cal) and Bhagwan Devi Saraogi v. ITO [1979] 118 ITR 906 (Cal). Strong reliance was placed on behalf of the appellant on Mahabir Prasad Poddar's case [1976] 102 ITR 478 (Cal). But, in our view, counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC) and B. K. Gooyee v. CIT [1966] 62 ITR 109 (Cal). In the case of Sewlal Daga v. CIT [1965] 55 ITR 406 (Cal), which was relied upon by the court of first instance, it was held that the reassessment on the legal heirs and representatives of the deceased-assessee on the notice being served on a person as karta of the HUF was invalid. In the facts and circumstances of this case it has to be seen whether the notice under s. 148 of the Act suffers from any defect which makes it invalid. According to the court of first instance vagueness in the notice has vitiated the same. In our view, the above finding of the court of first instance is a correct finding. At the relevant time there were two concerns of the same name and at the same address. The ITO had full knowledge of the separate identity of the two concerns but in spite thereof there was neither anything in the notice nor otherwise to show to which of the two concerns, either the partnership firm or the HUF, the said notice was directed. The concerned ITO admittedly was aware of the separate entities of the two concerns. In our view, the fact of the mentioning of the file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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