9911796707
TMI Blog1971 (2) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... mily properties and the other members of the family were also each entitled to one-fourth part or share thereof. Thereafter, for the assessment years 1950-51 to 1959-60, the petitioner was assessed as an individual with one-fourth share income of the property. It has been stated that on 13th April, 1957, a partition by metes and bounds of the said properties took place among the coparceners and the said partition was finalised on the 24th March, 1970. For the assessment years 1960-61 to 1964-65, the said one-fourth share income of the house property was assessed in the status of the Hindu undivided family consisting of the petitioner and his wife and sons as the petitioner is governed by the Mitakshara school of Hindu law. On 27th February, 1965, notices were issued in the name of " Bijoy Kumar Burman and others " under section 148 of the Income-tax Act, 1961, for the assessment years 1960-61 to 1963-64. On the 23rd March, 1965, notices were issued under section 148 of the Income-tax Act, 1961, for the assessment years 1956-57 to 1959-60, with the approval of the Commissioner of Income-tax, West Bengal III. The said notices are the subject-matter of challenge in this application un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came the co-owners of the said properties. I say that the coparceners did not proceed to obtain actual partition and there has been no award by the commissioner of partition, appointed in the said suit." At the hearing of this application, Mr. Dipak Kumar Sen, learned counsel for the revenue, contended that from the statements contained in the affidavit it could be inferred that there were reasons to believe that the income of the Hindu undivided family had escaped assessment. He also produced at the time of the hearing the reasons recorded for starting proceedings under section 147 of the Income-tax Act, 1961. It would be relevant in view of the controversy in this case to set out the said reasons : " Sarbashree Bijoy Kr. Burman, Krishna Kr. Burman and Rajendra Kr. Burman are assessed in their individual status by the Income-tax Officer, 'H' Ward, Dist. IV(2). It is found that these files were started some time in September, 1953, on the basis of voluntary returns filed by above-named persons. It appears that these persons filed voluntary returns showing income from house property only. The above persons have onefourth share in the properties at 161, Netaji Subhas Road, 227, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted upon or as a make-belief, then a severance of joint status is not created thereby, because by institution of suit in such circumstances there is no unequivocal expression of intention to separate. The question, therefore, is whether in this case the Income-tax Officer had reasons to believe that the suit for partition had been filed fraudulently or that it was really a make-belief. It appears from the reasons recorded, which has been noted above, that after the institution of the suit a receiver was appointed by this court. A commissioner of partition had also been appointed. As a matter of fact nowhere in the reasons which have been recorded by the Income-tax Officer it has been stated that the suit was filed mala fide or fraudulently or that the suit was merely a make-believe. What, on the other hand, has been stated was that, though the suit had been filed, actual partition by metes and bounds had, at the relevant years, not taken place. The Income-tax Officer is obviously proceeding on the basis that, in order to be a partition or disruption of a joint status, there had to be division by metes and bounds and the partition had to be carried into effect. But that is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pursuant to that challenge the grounds have been disclosed. It is therefore the duty of the court to see whether these grounds disclosed could be said to have a material bearing on the question of the formation of the belief. The law being well-settled on this point by the decision of the Supreme Court that the disruption of a Hindu undivided family takes place on the institution of a suit for partition and the joint status comes to an end, it must be held that since there is no evidence or grounds to believe that the suit was filed mala fide or as a colourable device, it cannot be said that during the relevant assessment years there was this joint Hindu undivided family or that there were any grounds for holding such a belief. In this case the department seems to have proceeded on the basis that the joint status continued, until there was an actual division or partition by metes and bounds. That is an erroneous point of view. The department has indicated neither in the affidavit nor in the reasons recorded for reopening the assessment any grounds for believing that the suit itself was a make-belief and was not intended to be acted upon. If the suit was proper, the institution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Calcutta. It is undoubtedly true that it is for the revenue to find out facts ; but where a decision of the authority is challenged by stating that there were no reasons and where the reasons have been disclosed and it appears from such reasons disclosed that they are not legally tenable and/or cannot have rational nexus to the formation of the belief, then the petitioner is entitled to seek relief under article 226 of the Constitution. In the above view of the matter this application must succeed. The respondents are directed to cancel, withdraw and rescind the notices dated the 27th February, 1965, issued under section 148 of the Income-tax Act, 1961, for the assessment years 1960-61 to 1963-64 and to cancel the notices of the 23rd March, 1965, for the assessment years 1956-57 to 1959-60, issued under section 148 of the Income-tax Act, 1961, and to desist from taking any further proceedings in respect thereof. Let writs in the nature of mandamus issue accordingly. The rule is made absolute to the extent indicated above. There will be no order as to costs. There will be a stay of operation of this order for a period of six weeks from date. - - TaxTMI - TMITax - Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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