- (1.) THIS is writ petition under Art. 226 of the Constitution of India. The relief prayed for by this writ petition is that notice under S. 46(5A) of the IT Act dt. 28th June, 1957, be quashed and attachment of the rents of the house known as "Ujagar Bhawan" situate at Birahana Road, Kanpur, be raised.
(2.) THE facts of the case shortly stated are as follows : One Sri Shambhu Nath, the father of the petitioner, was assessed to income-tax for the years 1946-47 to 1952-53 and a tax liability of Rs. 2,08,807-56 nP. was created against him. On 28th June, 1952, Shambhu Nath died leaving the petitioner, Ram Kishore, and Brij Kishore, his sons, as his heirs and legal representatives. Prior to his death on 29th Jan., 1948, Shambhu Nath advanced a sum of Rs. 1,00,000 to one Ujagar Lal Maharaj on the security of a usufructuary mortgage of the house in question belonging to the mortgagor. The petitioner alleged that the real mortgagees under the said mortgage were the aforesaid three sons of Shambhu Nath, and Shambhu Nath was merely a benamidar on behalf of the sons, and that Shambhu Nath, during his lifetime, had executed a disclaimer in respect of this mortgage. In paragraph 6 of the affidavit filed in support of the writ petition, the petitioner has stated that, for the purposes of the writ petition, it is not necessary to rely upon the disclaimer. Accordingly, it must be assumed that the usufructuary mortgagee of the house in question was Shambhu Nath. The house was in the possession of tenants, and by the impugned notice, rents of the house accruing due after the death of Shambhu Nath were sought to be attached for realisation of the tax demand against Shambhu Nath. It was stated in paragraph 8 of the affidavit that there was no rent due in the lifetime of Shambhu Nath. This statement in the affidavit has not been denied in the counteraffidavit. The question, therefore, which has been raised in this writ petition is that having regard to the provisions of S. 24B(1) and S. 46 of the IT Act, the rents falling due after the death of Shambhu Nath are the income of the petitioner and his brothers, and do not form part of the estate of Shambhu Nath, deceased, and, as such, the said rents cannot be required to be paid to meet the tax demand against Shambhu Nath.
(3.) IT may be stated that the petitioner and his brother had raised the question of benami in the assessment proceedings against Shambhu Nath, through themselves, as legal representatives. It is stated in the appellate order dt. 13th June, 1957, of the AAC in appeal against the assessment orders, that no evidence was led by the petitioner regarding the benami character of the mortgage. It also does not appear that the petitioner raised the point, which he has raised in this petition, before the ITO, upon the issue of the impugned notice by him. The petitioner appears to have filed the writ petition straightaway, upon the issue of the impugned notice to him, and to the tenants, and other creditors of Shambhu Nath.;