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TMI Blog2004 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the Income-tax Appellate Tribunal was correct in law in holding that neither a notice under section 148 of the Income-tax Act, 1961, had been issued to the assessee nor had it been validly served?" The assessment year 1964-65 is involved in the present reference. The brief facts of the case are as follows: The proceedings giving rise to the present reference arose out of reassessment proceedings under section 147 of the Act. There was a joint Hindu family known as M/s. Shital Prasad Kharag Prasad. This family consisted of Raja Sir Moti Chand, his younger brother, Gokul Chand, the sons of the latter and the sons of the pre-deceased brother, Shri Mangal Prasad. Raja Sir Moti Chand who was originally the karta of the family died in 1934 leaving no male issue and was succeeded by Shri Gokul Chand as karta, who also died in 1958. Ultimately, Shri J.B. Gupta became the karta of the family. The family was enjoying income from business, house property and Zamindari properties spread over at different places including Varanasi, Delhi and Calcutta. After the death of Sir Moti Chand in 1934, the business of the family virtually came to a close and a separation took place betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was served on August 27, 1976, on one Shri B.D. Agrawal who had been looking to the affairs of the family from time-to-time and has a written authority in his favour from Shri J.B. Gupta. It may be noticed here that Shri J.B. Gupta had died on August 13,1974, consequently a plea was raised that after the death of Shri J.B. Gupta, no notice on his behalf could be received or served by Shri B.D. Agrawal whose authority had come to an end on account of the death of Shri J.B. Gupta. However, the return was filed in pursuance of the notice by Shri Rajkumar on January 7, 1977. During the course of reassessment proceeding, before the Income-tax Officer, one of the objections raised was that the notice under section 148 of the Act was neither validly issued nor served, as required in terms of section 283(1) of the Act. The said section prescribes mode of service after finding of total partition has been recorded by the Income-tax Officer under section 171 in respect of the joint Hindu family. The Income-tax Officer did not accept the aforesaid contention of the assessee and passed the reassessment order which was challenged before the Commissioner of Income-tax (Appeals), by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the officer concerned. Moreover, as noticed by the Calcutta High Court in that judgment there was no question of the validity of the mode of the issue of notice in that case. Therefore, the aforesaid ruling does not defend the case of the Department. The next case relied upon is CIT v. Rajbir Singh (HUF) [1998] 233 ITR 126 (P H). It appears that learned standing counsel has cited the above case even without caring to read it. The said judgment of the High Court is on the income-tax application directing the Tribunal to refer the question framed therein for the opinion of the court as the High Court was of the opinion that a question of law arises from the order of the Tribunal. The next case relied upon is Mulchand Rampuria v. ITO [2001] 252 ITR 758 (Cal). The said case is also not applicable. The assessee in that case had challenged the validity of the reassessment notice by filing a writ petition in the High Court on the ground that there was no material before the assessing authority to form a belief that the income of the assessee has escaped assessment. The High Court on the facts of that case held that the assessing authority had the authority to issue such notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would confer no jurisdiction on the 'Income-tax Officer'." The Kerala High Court in P.N. Sasi Kumar v. CIT [1988] 170 ITR 80 has held that the issue of a notice under section 148 of the Income-tax Act, 1961, is a condition precedent to the validity of any assessment order to be passed under section 147 of the Act. It is also settled law that if no such notice is issued or if the notice is invalid or is not in accordance with law or is not served on the proper person in accordance with law, the assessment would be illegal and without jurisdiction. The notice should specify the correct assessment year and should be issued to a particular assessee. The notice issued to the assessee in that case did not specify the capacity in which it was issued to one S, whether as individual or as "principal officer" or as a member of an association or body of individuals. The assessment was completed by the Income-tax Officer in the status of an association of persons consisting of S and some others. It was held that before assessing an association of persons, the notice should be addressed to the "principal officer" or a "member" thereof as required by section 282(2)(c), which was not done. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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