NOONE CHINA SESHAIAH Vs. INCOME TAX OFFICER
HIGH COURT OF ANDHRA PRADESH
NOONE CHINA SESHAIAH
INCOME TAX OFFICER
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(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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