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TMI Blog1998 (7) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner be considered by passing an order under section 226(3) of the Act and thereafter the proceedings for recovery could be taken. In pursuance of the said directions, the order dated October 7, 1988, was passed by the Income-tax Officer, Ward-3(1), Bangalore, which is now assailed in this writ petition. The facts of the case are that there was a partnership firm in the name of Salar Publications. Salar Publications had borrowed a sum of Rs. 10,74,000 between February, 1981, and May, 1981, from one Sri Askar Mirza who is an assessee under the Income-tax Act and there were dues outstanding against him. The Tax Recovery Officer initiated proceedings under section 226(3) of the Income-tax Act and notice dated May 25, 1982, was issued in the name of the firm, which was served on Sri K.Rehman Khan on May 29, 1982. Besides, Sri K. Rehman Khan, power of attorney holder of Sri Askar Mirza was the manager of the newspaper Southern Speaker India Daily, published by the trust and thus was man aging the affairs of the trust. This notice was for a sum of Rs. 5,49,644. Salar Publications consisted of six partners and has admitted Salar Publications Trust as the seventh partner on M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en raised is that Sri Rehman Khan was never a partner of the firm and was only a general power of attorney holder and therefore, it is not a proper service on the partnership firm. According to the respondents, Sri K. Rehman Khan was the editor and was looking after the management and business of the firm. Section 282 of the Income-tax Act refers to the mode of service. The requirement of the section is that notice has to be addressed and served on the person. In the case of a firm, it can be addressed to any member of the firm or to the manager. Whether Sri Rehman Khan was an authorised person or was an unauthorised person has not been disputed by filing any affidavit of Sri K. Rehman Khan or any partner of the firm. It is not disputed that the notice was addressed to the firm. Regarding the service, in the normal course of business, if any person is managing the affairs of the firm, he could be served. In the ease of Kundan Lal Vedi v CIT [1958] 34 ITR 414 (Punj), service of notice on the accountant was considered proper service. Even an unauthorised person could sign the acknowledgment. In ILR 46 Cal 456, it was observed that even an unauthorised person might have been requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit was filed by Dr. Mumtaz Ahmed Khan. Even in the earlier proceedings it was submitted that an affidavit of Dr. Mumtaz Ahmed Khan has been submitted. In this affidavit it is stated that the trust was taken as partner on March 1, 1984, in the firm Salar Publications and took over the business on dissolution on March 31, 1984. He also admitted that Mr. Askar Mirza has lent a sum of Rs. 10.74 lakhs to the firm. The other contention which was raised was that the debt due to Askar Mirza had become time-barred as per the law of limitation in 1984. This was not an averment of fact but it is a question of law and as I have already discussed above, it was admitted in the affidavit that the trust has taken the liability of the firm on dissolution, and the liability was denied only on the ground of limitation. He has referred to the notice dated September 4, 1987, issued to the trust. The said affidavit has no reference to the service of notice on K. Rehman Khan. So notice was issued by the Income-tax Officer, Central Circle V, Bangalore, and he has also not been impleaded as a party. In the statement of Dr. Mumtaz Ahmed Khan dated May 21, 1987, it was admitted that Mr. Askar Mirza has de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the notice. The Allahabad High Court observed that it is desirable and proper to mention the amount in the notice issued under section 226(3)(i). But it was observed that in every case where notice does not expressly specify even the sum due it will not be invalid. This judgment of the Allahabad High Court was carried to the apex court as reported in Beharilal Raincharan v. ITO [1981] 131 ITR 129. There also it was held that if the notice does not indicate any specific amount alleged to be due, it was not invalid since no prejudice was caused to the appellant because the appellant had at no time complained about the vagueness of the notice. In the present case also no prejudice is caused to the petitioner as even in the statement of Dr. Mumtaz Ahmed Khan he admits that a sum of Rs. 10.74 lakhs is payable by the trust to Mr. Askar Mirza and as such this contention also has no force. It may also be observed that against the order of the Income-tax Officer, the petitioner has the remedy of revision. The Allahabad High Court in the case of Mansa Devi Mithal v. U.P. State Warehousing Corporation [1979] 116 ITR 413, has observed that if the facts are disputed then interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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