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TMI Blog1970 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1, 1958. The petitioner also objected to the notice stating that he was not the karnavan of the illom. Some correspondence followed between the petitioner and the respondent ; and it finally ended in a best jugment assessment made by the respondent on April 20, 1959. The respondent also issued a notice on the petitioner to show cause why a penalty should not be imposed on him for not filing a return as required by the Act. Thereupon the petitioner filed two writ petitions in this court one was O. P. No. 645 of 1959 to quash the order of assessment and the other was O. P. No. 646 of 1959 to quash the notice for imposing penalty. The petitioner had also filed an appeal from the order of assessment. In the meanwhile the petitioner seems to have made representations to the Commissioner of Income-tax and Expenditure-tax against the alleged irregularities occurred in making the best judgment assessment and also in issuing the penalty notice to him. In the light of the discussions which the petitioner's representative had with the Commissioner, the petitioner withdrew O. P. No. 645 of 1959 ; and it was accordingly dismissed on December 22, 1959. The Commissioner then wrote exhibit P-2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptable ; (ii) The respondent was bound to pass an order as required by section 19 of the Act on the claim of the petitioner that his illom had been partitioned on March 30, 1958, and the order of assessment is, therefore, bad ; (iii) The petitioner ceased to be the karta of the illom consequent on the partition, and the assessment proceedings should have, therefore, been taken against all the members of the illom ; and (iv) The illom is entitled to the allowance provided in section 6(1)(h) of the Act as it stood before that provision was deleted by the Expenditure-tax (Amendment) Act 12 of 1959. " The assessment proceedings have been pending against the petitioner from July 21, 1958. Even after the best judgment assessment was set aside by the order, exhibit P-3, dated January 6, 1961, the petitioner had sufficient opportunity to file the return and produce the accounts. The respondent started proceedings pursuant to exhibit P-3 in 1962 ; and the impugned assessment order was passed only on March 29, 1968. The petitioner's case throughout was that the illom was not liable to assessment as it ceased to exist before the Act came into force, and that he was not liable to any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the section has no application to a case where the partition took place subsequent to the previous year relevant to the assessment year. Section 19(1) contemplates two things, namely, recording of an order that a partition in the manner mentioned therein has taken place, and then making assessments on the expenditure of the undivided family as such for the assessment year or years including the year relevant to the previous year in which the partition has taken place. The assessments which would be affected consequent on the order of recording a partition would be only the assessment for the year relevant to the previous year in which the partition took place and the assessments for all subsequent assessment years. Therefore, it appeared to me that section 19 can apply only to a case where the partition took place in the previous year. Counsel for the petitioner invited my attention to a decision of the Punjab High Court in Rajmal Paharchand v. Commissioner of Income-tax, wherein an opposite view has been taken. Dealing with section 25A of the Indian Income-tax Act, 1922, which is similar in terms to section 19 of the Act, the court said : " Now, the expression 'at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers now. " This statement is apparently contrary to the definite case which the petitioner put forward before the respondent in his objection, exhibit P-5, and which he has also put forward in the affidavit in support of the original petition. It is sufficient for me to say that, if the petitioner has put forward a claim based on the partition under section 19 of the Act, the respondent is bound to make an enquiry into that claim, and, if he is satisfied that the family property has been partitioned in the manner stated therein, to record an order to that effect. If he is not so satisfied he has, by order, to declare that the said family shall be deemed for the purpose of this Act to continue to be a Hindu undivided family liable to be assessed as such. The provision is mandatory and the respondent has not complied with the above provision. The assessment order, exhibit P-1, has, therefore, to be quashed on this short ground. Counsel for the respondent cited two decisions of the Supreme Court, Kalwa Devadattam v. Union of India and Additional Income-tax Officer, Cuddapah v. A. Thimmayya, and contended that the fact that the respondent did not pass an order as contemplated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax (Spl.) supports the above view. The last point, that the petitioner was not given the basic allowance under section 6(1)(h) of the Act, is one which has been raised by the petitioner by an additional affidavit at a late stage. The respondent has not filed any counter-affidavit with regard to that claim. Counsel for the respondent submits that what has been assessed by exhibit P-1 is the net taxable expenditure, and that it should, therefore, be taken that this allowance has been taken into consideration. A reading of the order does not show that such a claim was raised nor considered. The order does not make any reference to such a claim nor does it show that any amount was allowed on that account. At any rate, in view of the fact that I am setting aside the order of assessment, it is not necessary for me to express any opinion on this question. The respondent has to consider this claim if it is properly raised before him by the petitioner. In the result, I quash the impugned order of assessment, exhibit P-1. The respondent will be at liberty to take up the assessment proceedings and proceed with the same in accordance with law and in the light of the observations herei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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