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TMI Blog1971 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ty passed by the 2nd respondent in his proceedings dated August 31, 1965. He is seeking for a writ of prohibition against the respondents from giving further effect to the impugned notice in the following circumstances. The petitioner's case is that he was admittedly a partner of an unregistered firm carrying on business under the name and style of Standard Starch Products Company, Salem. It is not in dispute that this business was carried on in land No. 48 in Sandhiyur Village, Salem Taluk. The petitioner was no doubt associated in partnership with N. Jagannathan, P. Kandasami Chettiar and M. Doraisami Chettiar. But the petitioner's case is that their trading style was different from the one adopted by the firm against which the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t trade name during the year 1946-47. The department, however, put the petitioner on notice that he and the three other persons referred to above were in fact doing business at the place mentioned already, that the demand was raised under section 44 of the Income-tax Act, and that the petitioner could not escape liability. Ultimately, on October 18, 1962, a notice under section 226(3) of the Income-tax Act, 1961, was issued to the persons concerned, including the petitioner, calling upon them to pay Rs. 7,026.13 after deducting a sum of Rs. 7.75 alleged to have been collected. The petitioner obviously resisted the claim. But, it is common ground that he appeared on summons being served on him under section 131 of the Income-tax Act and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents from recovering the sum of Rs. 7,026.13 in pursuance of the attachment order and declaring the petitioner as not liable to pay the said sum. A writ of prohibition is issued only in cases where the court's conscience is satisfied that there is a total absence of jurisdiction on the part of the statutory tribunal whoever he is, functioning under a particular enactment, to exercise the power which he has assumed and pursuing the process further by affecting the rights of third parties and acting to their prejudice. The essential pre-requisite, therefore, is the complete absence of jurisdiction on the part of the Tribunal whose order is sought to be challenged under article 226 of the Constitution. It should be found as a fact an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the information disclosed that the unregistered firm was trading under the name and style of Standard Starch Manufacturing Company. It ultimately transpires that a genuine mistake has crept in, because the trading style of the firm, as was found later on at the time when Mr. Jagannathan was examined in the presence of the petitioner, was " Standard Starch Products Company ". But for this clerical error, I am of the view that there is no ambiguity in bringing home the order of assessment to the petitioner and his partners who did associate themselves in commercial activity in the year in question and earned income. The oral partnership was recorded in writing, but not in proper form. It is evidenced by an improvised and inchoate document wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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