MISRIBAI LEGAL REPRESENTATIVE OF LATE RAJESWAR PERSHAD Vs. INCOME TAX OFFICER A 3 A WARD HYDERABAD
HIGH COURT OF ANDHRA PRADESH
MISRIBAI LEGAL REPRESENTATIVE OF LATE RAJESWAR PERSHAD
INCOME-TAX OFFICER, A-3, A WARD, HYDERABAD
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Chandrasekhara Sastry, J. -
(1.) The petitioner is the wife and the legal representative of late Kameshwar Pershad residing at Hyderabad, who is an assesses under the Income-tax Act. On 30-3-1959, Rameshwar Pershad was assessed for the assessment year 1958-59 and on 30-9-1958 for the assessment year 1957-58 and also for the assessment year 1956-57 in his individual status. He had also an interest in a firm called "M/s.. Kishanlal Oil Mills" and at the time of the original assessments, his share of tile income therefrom was tentatively fixed with the proviso that the assessment would be rectified under Section 35 of the Income-tax Act, 1924 after the assessment of the firm would be completed. Subsequently, the assessment of the firm was completed and on the basis of that, the assessments of Sri Rameshwar Pershad for the years 1956-57, 1957-58 and 1958-59 were rectified on 7-3-1963. As a result of this rectification, the assessee had to pay Rs. 6,142-50 np. for the year 1956-57, Rs. 8,074-53 np. for the year 195/-53 and Rs. 2,283-44 nP. for the year, 1958-59.
(2.) The Order, as I stated, was passed on 7-3-1963. On the order itself, the Income-tax Officer endorsed as follows: "This should be paid within a week of receipt of the order." In the counter-affidavit filed by the Income-tax Officer, it is stated that the assessee authorised representative had no objection to the proposed rectification and that in consent thereof, he signed the order-sheet on 7-1-1963 and that on the same toy, similar opportunity was given to Shri Ghanshyamdas of M/s. S. G. Dastgir and Co., Chartered Accountants, who represented the assesses for the assessment years, 1956-57 and 1957-58 and also that the said gentle man gave his consent to the proposed revision of the assessment and that in token thereof, he also signed the order-sheet. So that, it must now be taken that there is no objection at all to the order passed under section 35 of we Income-tax Act, 1922.
(3.) The point raised in the Writ Petition by the assessee's legal representative, who is his wife, is that no notice or demand as required by the Income-tax Ad, 1922 or the Income-tax Act of 1961 was ever served on her. It is also further urged that as the rectification under Section 35 or the Income-tax Act, 1922 is made only on 7-3-63 and the Income-tax Act of 1961 came into force, the notice or demand should be given under section 155 of that ACT. In paragraph 5 of the counter-affidavit it is admitted that no separate demand notice was served on the petitioner as the very order under Section 35 mentions in the end that the amount is payable within a week of the receipt of the order and that, as the order was passed with me consent of the assessee's authorised representative and further the order being one of rectification under Section 35, the formality of issuing a demand notice was not strictly observed. In paragraph 4 of the counter-affidavit, it is stated that it is the old Act that applies to the present case as the assessment year was one which was prior to the coming into force of the new Act for the year 1961 and that therefore, notice of demand, if at all, has to be given as required, by Section 29 of the Act of 1922 and that it is not necessary to give a notice under Section 156 of the new Act of 1961.;
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