1974 (4) TMI 5 - HC - Income Tax

When the notice for reassessment gives no indication that the AOP was sought to be assessed and it is issued merely in several names of members - Whether Income-tax Officer can assess the association - it is not necessary to determine whether on the construction of the agreement of July, 1949, executed between the finance company and nine parties, any association of persons had or had not been formed and whether the same had come to an end with the death of two of its members - writ petitions are allowed to the extent that the respondents will forbear from treating the impugned notices as notices having been issued to or in respect of any association of persons not assessed to income-tax. The income-tax authorities will, however, treat the said notices as notices addressed to individual members mentioned therein in respect of their individual incomes which are alleged to have escaped assessment during the relevant years. Upon the construction of the impugned notices as being addressed to the individuals, they do not suffer from any other legal infirmity, nor has any been pointed out and the department will act accordingly.

Issues Involved:
1. Validity of the impugned notices.
2. Assessment of individuals versus association of persons.
3. Existence and termination of an association of persons.
4. Nature of the income derived from the sale of land.

Detailed Analysis:

1. Validity of the Impugned Notices:
The petitioners challenged the notices issued by the Income-tax Officer under section 148 of the Income-tax Act, contending that they were not valid as they did not specify an "association of persons" as the assessee. The court noted, "The impugned notices are not directed against any association of persons alleged to have been formed by the petitioners." The notices were addressed to individuals, and there was no indication that they were intended for an association of persons. The court held that the notices could not be used to assess an association of persons but could be used to assess the individuals mentioned.

2. Assessment of Individuals versus Association of Persons:
The petitioners argued that the Income-tax Officer had already assessed some members in their individual capacity and could not now assess the association. The court agreed, noting that the Income-tax Officer had assessed Suraj Narain individually in 1953 and had "exercised his option" to assess individuals. The court cited precedents, stating, "once the option to make an assessment against an individual has been exercised, the department cannot proceed to assess the association formed by him for the same income for the same year."

3. Existence and Termination of an Association of Persons:
The petitioners contended that no association of persons existed for the purpose of producing business income and that any such association had ended with the deaths of two members and a compromise decree in 1959. The court did not find it necessary to determine whether an association of persons had been formed or had terminated, as the primary issue was the validity of the notices and the assessment of individuals versus an association.

4. Nature of the Income Derived from the Sale of Land:
The petitioners argued that the income from the sale of land was not a revenue receipt but a conversion of capital and thus not taxable. The court did not address this issue in detail, stating, "It is again not within my jurisdiction to determine whether the income derived from the sale of the land constituted revenue receipt or a capital gain." This matter was left to be decided by the departmental authorities in appropriate proceedings.

Conclusion:
The court allowed the writ petitions to the extent that the respondents were directed to forbear from treating the impugned notices as notices issued to an association of persons. The income-tax authorities were instructed to treat the notices as addressed to individual members in respect of their individual incomes. The court emphasized that the notices, when construed as being addressed to individuals, did not suffer from any other legal infirmity. The writ petitions were disposed of with each party bearing its own costs.

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