Decided on September 25,1963



- (1.) IN this writ petition, two points are urged. Firstly, that the petitioner cannot be made liable for the entire tax liability of the joint family and secondly, that unless a notice of demand under S. 25A(2) apportioning the tax liability is given to him, his properties cannot be attached to recover the liability of the joint family and no proceedings can be taken to collect the tax from him. The petitioner is one of the members of the joint family which was assessed for the years 1948 49, 1949 50, 1950 51, and 1951 52. There was an application under S. 25A for a declaration assessments for these years were made earlier on different dates, the order under S. 25A was only passed on 5th Jan., 1957, holding that there was a division of the joint family for the purpose of s. 25A from 31st March, 1951. At the time when this order was made, the ITO omitted to make a demand notice under S. 25A(2) apportioning the tax liability between the members of the joint family. Without doing this, the petitioner's properties were sought to be made liable and they were attached. It is with respect to this that this petition has been filed.
(2.) THERE are two decisions of this Court, one by Seshachalapathi, J. in A. Ranganatham vs. Addl. ITO (1960) 39 ITR 730 (AP) : TC37R.900 which on appeal was confirmed by a bench of this Court consisting of the honourable the Chief Justice and Chandrasekhara Sastri, J. in Addl. ITO vs. A. Thimmayya (1962) 46 ITR 999 (AP) : TC37R.785. Both these decisions uphold the contention of the learned advocate for the petitioner that unless a notice of demand under S. 25A(2) apportioning the tax liability between the members of the joint family is made, properties of any single individual cannot be attached. The Bench in the latter case pointed out, in respect of the contention raised by the advocate for the Department that S. 25A is applicable only to assessment years which followed upon the date of partition, that contention is unsubstantial as not warranted by the language of the section which refers only to the date when the assessment is made and not to the assessment year. The section itself begins with the words "where at the time of making an assessment under S. 23......". The relevant time is therefore, the date of the making of the assessment and not the year of assessment in regard to which the assessment is sought to be made subsequently. From this decision, it is clear that unless the procedure laid down in S. 25A(2) by issue of a notice of demand, apportioning the tax liability in respect of the years during which the joint family was liable under assessment, is issued, no attachment of properties or collection of tax can be made. In my view, it will be open to the IT authorities to take steps to issue the necessary demand notice under S. 25A(2). Sri Venkatappa for the Department has cited a decision in Kalwa Devadattam vs. Union of India (1963) 49 ITR 165 (SC) : TC37R.710. There though a prayer was made for an order of partition and the ITO assessed the parties without making that order, the tax liability was joint and several. The several points that were considered by the Bench of this Court in Addl. ITO vs. Thimmayya (supra) specifically under S. 25A(2) did not fall for determination by their Lordships of the Supreme Court and that case does not directly apply to the facts and circumstances of this case.
(3.) IN so far as the other question is concerned Sri Rama Row says that he never questioned the assessments in this writ petition but he has only challenged the whole of his liability being foisted on him by non issue of the notice of demand under S. 25A and has not even argued any point challenging the assessments as such. In the result, this writ petition is allowed with costs. Advocate's fee Rs. 100.;

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