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TMI Blog1970 (4) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... h Indian authorities until the merger of Cambay with the then Province of Bombay. Subsequent to the merger, some inquiry was made by the Additional Income-tax Officer, Petlad Circle, Petlad, and pursuant to the inquiry, the deceased appeared before the Additional Income-tax Officer, Petlad Circle, Petlad, and made a statement giving various explanations regarding investments made by him from time to time. The deceased disclosed in this statement that he had three sons, namely, the petitioner, Punjabhai and Nanubhai, and he also gave full particulars about their activities. This inquiry was with regard to the assessment years 1949-50 to 1953-54 and in view of the explanation given by the deceased, it was closed and no further proceedings were taken. However, so far as the assessment year 1954-55 is concerned, the Income-tax Officer, Ward-B, Petlad, issued a notice dated 25th June, 1954, under section 22(2) requiring the deceased to submit a return of income and pursuant to the notice the deceased filed a return of income on or about 13th August, 1954. The Income-tax Officer, Ward-B, Petlad, by an order dated 28th June, 1955 assessed the deceased in the status of Hindu undivided fami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the assessment years 1941-42 to 1951-52. These notices were in identical language and they were addressed to "Shri Marghabhai Babarbhai Patel, UNDEL." These notices were served on the petitioner by affixing them on the outerdoor of the house of the petitioner on 27th March, 1962. When the notices were served, the petitioner was admittedly out of Cambay and he returned to Cambay some time before 30th April, 1962. The petitioner, on perusing the notices, addressed a letter dated 30th April, 1962, to the Income-tax Officer, Ward B, Petlad, challenging in jurisdiction of the Income-tax Officer to issue the notices and pointing out various facts and circumstances which, according to the petitioner, showed that the notices were not justified. The Income-tax Officer by his letter dated 5th June, 1962, replied to the petitioner asserting that the action started against the petitioner under section 34(1)(a) was quite proper and legal and he also pointed out to the petitioner that certain copies of accounts were not enclosed with the petitioner's letter dated 30th April, 1962, as stated in that letter. The petitioner, accordingly, forwarded copies of these accounts to the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extraordinary jurisdiction under article 226 of the Constitution, delay is a factor which has to be taken into account in deciding whether the discretion of the court should be exercised against the petitioner, there is no hard and fast rule that delay must necessarily in all cases result in the dismissal of the petition. The discretion which the court has under article 226 of the Constitution is a judicial discretion and its exercise must always depend on the facts and circumstances of each case. We must, therefore, examine the facts of the present case for the purpose of seeing whether the delay on the part of the petitioner is of such a character that we should in the exercise of our discretion refuse to grant relief to the petitioner even if his claim is otherwise found to be well merited. The impugned notices were served on the petitioner on 27th March, 1962, by affixation on the outer door of his residence. The petitioner was admittedly at that time out of Cambay. He returned to Cambay some time before 30th April, 1962, and immediately addressed the letter dated 30th April, 1962, to the Income-tax Officer protesting against the issue of the impugned notice. It is true that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notices were without jurisdiction and the Income-tax Officer had no justification to issue them. Moreover, the delay on his part in filing the petition has not in any way resulted in any prejudice to the revenue. It is not as if the petitioner has allowed the reassessment proceedings to go on and come to the court at a late stage of those proceedings. The petition has actually been filed as soon as the Income-tax Officer indicated that he is proceeding further under the impugned notices. It is, therefore, not possible to throw out the petition on the ground of delay or laches. But apart from this answer on facts, there is another answer to the preliminary objection which is in our view unassailable. It is no doubt true that the petitioner seeks to have the impugned notices quashed and set aside and in so far as that relief is concerned, it might be said that there is delay on the part of the petitioner since the petition has been filed more than three years after the date of issue of the impugned notices. But it may be noted that the petitioner has also claimed in the petition a writ of prohibition against the continuance of reassessment proceedings pursuant to the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to continue reassessment proceedings against the Hindu undivided family of the deceased pursuant to these notices. Now, there can be no doubt that if the impugned notices are issued against the petitioner as legal representative of the deceased for making reassessment of the income of the deceased as an individual, they cannot be availed of for the purpose of taking proceedings for reassessment of the income of the Hindu undivided family of the deceased. This proposition is self-evident and needs no authority in support of it. But, if any authority were needed, it may be found in the decision of the Supreme Court in Commissioner of Income-tax v. K. Adinarayana Murty. It is clear, as pointed out by the Supreme Court in this case, that: "Under the scheme of the Income-tax Act the 'individual' and the Hindu undivided family' are, treated as separate units of assessment and if a notice under section 34 of the Act is wrongly issued to the assessee in the status of an 'individual' and not in the correct status of a 'Hindu undivided family' the notice is illegal and all proceedings taken under that notice are ultra vires and without jurisdiction." It, therefore, becomes n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner as manager or adult male member of the Hindu undivided family of the deceased. But the words used here are reminiscent of section 24B and clearly indicate that the impugned notices were issued for making reassessment of the income of the deceased as an individual through the petitioner as the legal representative under section 34(1)(a) read with section 24B(2). The learned Advocate-General contended that the words " legal representative of late Babarbhai Hirabhai Patel " were merely descriptive of the petitioner and they should not be given undue emphasis in determining the nature and character of the impugned notices. But this contention fails to explain why these words should at all have been introduced to describe the petitioner. It was not at all necessary for the Income-tax Officer to describe the petitioner as legal representative of the deceased if the impugned notices were being issued to the Hindu undivided family of the deceased. Such a description would be irrelevant and out of place. It would have been more appropriate and relevant in such a case to describe the petitioner as manager or adult male member of the Hindu undivided family of the deceased. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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