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TMI Blog1970 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... and the late Ganapati Sarkar. Thereafter, a further notice addressed to the said Sri Talukdar was also issued with a forwarding letter on the 30th August. There was no compliance with the terms of the said notice under section 22(4) of the said Act and the assessment was completed under section 23(4) read with section 41 of the said Act. The status of the assessee has been mentioned as the Hindu undivided family. It is necessary to point out the exact expressions used in the assessment order which are as follows : " Status, Hindu undivided family, consisting of the following members....." Then the names of the persons constituting the Hindu undivided family have been stated. In the order itself there are the following observations: " As there has been no compliance the assessment is being made under section 23(4) of the Act and the assessment is levied on the Hindu undivided family on whose behalf receivers, Mr. H. Talukdar and Mr. B. C. Ghosh, are at present receiving the income and the tax will be realised from them under section 41(2) if the members of the Hindu undivided family fail to pay the same." The total income assessed was Rs. 1,02,450 and the tax determined to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have been agitated before the income-tax authorities. The Certificate Officer observed that the demand notice was issued on the Hindu undivided family was received by one Nagendra Nath Ghosh. The Certificate Officer recorded that it had not been denied that Nagendra Nath Ghosh is a karmachari of the Hindu undivided family. He, therefore, held that there had been a proper service of the notice of demand or the Hindu undivided family. The next contention that urged before the Certificate Officer was that the Tax Recovery Officer or the Additional Collector, 24-Parganas, had no jurisdiction over the town of Calcutta. After discussion of the relevant provision of the Act he came to the conclusion that this objection was without substance. The third contention that was urged before the Certificate Officer was regarding the realisation of tax from the receivers only. The Certificate Officer observed that this objection had not been pressed before him. He further observed that this point had been dealt with by him in his order dated 22nd February, 1964, in connection with the objection petition of C. D. Mihir Kumar Sarkar. For the reasons aforesaid the Certificate Officer rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Tax Recovery Officer. Here the assessee was the Hindu undivided family. Before the Tax Recovery Officer it was not open to the assessee to dispute the correctness of the assessment or the validity of the assessment. That is the provision of section 224 of the Income-tax Act, 1961. If the contention of the assessee was that the Hindu undivided family was not the proper unit of assessment, for whatever reasons, it was for the assessee to take up the matter in appropriate proceedings under the Income-tax Act. The Tax Recovery Officer and the Additional District Magistrate, 24-Parganas has found in this case that the assessment was in the name of the Hindu undivided family and the certificate was also in the name of the Hindu undivided family. He has held that he could not go beyond the certificate filed. The Commissioner in his order has stated that the Tax Recovery Officer was not correct on this point. We are unable to agree. It appears to us, in view of the clear provision of the law, that the Tax Recovery Officer and the Additional District Magistrate was clearly right on this aspect of the matter in this observation and the Commissioner was clearly in error when he held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention urged on behalf of the assessee. He has observed that the contention was that the notice had been served on an employee of the Hindu undivided family and not on the individual members. This is precisely contrary to what is now being contended on behalf of the assessee by Mr. Banerjee. Mr. Banerjee states that the Commissioner has incorrectly recorded that contention and no such contention could have been made on behalf of his client. It is not possible for us in disposing of an application under article 227 of the Constitution to allow Mr. Banerjee to urge this point. It has to be observed that in the affidavit-in-opposition to the proceeding in this court it has not specifically been recorded or stated that the Commissioner has wrongly or incorrectly recorded the contention made on behalf of Mr. Banerjee's client. Even assuming that the Commissioner has wrongly recorded the contention urged on behalf of Mr. Banerjee's client there is no finding of fact by the Commissioner reversing the decision of the Tax Recovery Officer on this aspect of the matter, namely, that there has been proper service of notice on the Hindu undivided family and that Nagendranath Ghosh was an emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her it was pressed or not the Tax Recovery Officer was quite right in not upholding it, in view of what has been stated hereinbefore. Whether subsequent steps can be taken in respect of properties in pursuance of the order of the Tax Recovery Officer without the leave of this High Court because of the fact that receivers have been appointed in respect of these properties is not a matter which was for adjudication before the Tax Recovery Officer. In this connection reference may be made to paragraph 13 of the said affidavit of Ajit Kumar De. It, therefore, appears to us that the order of the Commissioner dated 4th December, 1965, is clearly erroneous being contrary to the relevant provisions of law and facts on record. It cannot, therefore, be sustained. There are errors of law on the face of the record. In the result this application is allowed and the rule is made absolute. The order of the Commissioner, Presidency Division, dated 4th December, 1965, is hereby set aside and the order of the Tax Recovery Officer and the Additional District Magistrate, dated 17th August, 1964, in Case No. 44 I.T.B. of 1963-64(X) is restored. There will be no order as to costs. ARUN K. MUKHERJEA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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