Om Prakash, J. - (1.) PRAYER of the petitioner is that a writ in the nature of certiorari be issued for quashing the ex parte assessment orders, made by respondent No. 2 for the assessment years 1963-64, 1964-65 and 1965-66 on the firm, Badshah Pasand Karyalaya, and for quashing the proclamation dated March 24, 1987 (annexure 1 to the writ petition), for auctioning the house No. 74/110, Dhan Kutti, Kanpur, and that a writ be issued in the nature of mandamus directing the respondents not to proceed with the recovery on the basis of the ex parte assessment orders.
(2.) BRIEF facts are that one Laxmi Narain Shukla, who was engaged in the business of manufacture and sale of pan masala in the name Badshah Pasand Pan Masala, died on March 23, 1959, leaving behind his wife, Smt. Bitti Kunwar, his sons, Chunni Lal Shukla, Munna Lal Shukla and the petitioner. It is averred that after the death of Laxmi Narain Shukla, his son, namely, Chunni Lal Shukla, formed a partnership on March 23, (sic) 1959, which, purportedly, comprised six partners, viz., three sons of Laxmi Narain Shukla, his widow and two sons of Chunni Lal Shukla. Smt. Bitti Kunwar disputed the genuineness of the partnership deed of that firm and she averred that the partnership deed as well as Form No. 11 never bore her thumb impressions. It is averred that the petitioner started a separate business with his brother, Munna Lal Shukla, and mother, Smt. Bitti Kunwar, in 1961, in the name and style, Badshah Pasand Karyalaya. For such business, the petitioner filed a return for the assessment year 1963-64 in the status of a Hindu undivided family and returns for the assessment years 1964-65 and 1965-66 were filed on behalf of the firm, Badshah Pasand Karyalaya, which was constituted under the partnership deed dated October 11, 1962, by the petitioner, Munna Lal Shukla and Smt. Bitti Kunwar. In para. 6 of the petition, the averment is that Chunni Lal Shukla carried on a separate business in the same name and style in which the business was later carried on by the partnership firm constituted by the petitioner, Munna Lal Shukla and Smt. Bitti Kunwar. Chunni Lal Shukla, therefore, filed Suit No. 4 of 1963 in the civil court against the partners of the firm, Badshah Pasand Karyalaya, that the latter infringed the trade mark of the former's business and claimed a mandatory injunction against the partners that they be restrained from carrying on the business in the name and style in which the business was being carried on by Chunni Lal. In this civil suit, a receiver was appointed at the instance of Chunni Lal Shukla on May 21, 1966. It is said that the receiver had no concern with the business started under the partnership deed dated March 23, 1959, and October 11, 1962. The Income-tax Officer framed an assessment for the assessment year 1963-64 on March 19, 1968, pursuant to the return which was filed by the petitioner in the status of a Hindu undivided family and for the assessment years 1964-65 and 1965-66, the assessments had been made on December 11, 1970, pursuant to the returns which the petitioner filed in the name of the firm, Badshah Pasand Karyalaya. All the three assessments were, however, made in the status of an association of persons. The income-tax returns for all the three years were not accepted and the assessments had been made on larger amounts under Section 144 of the Income-tax Act, 1961 (for short, " the Act, 1961 "). The receiver, who was appointed on May 21, 1966, filed returns for the years 1966-67 to 1970-71 and he also made an application under Section 146 of the Act, 1961, to set aside the ex parte assessment orders. As the ex parte orders were not set aside, the Income-tax Officer issued recovery certificate to the Tax Recovery Officer, who attached house No. 74/110, Dhan Kutti, Kanpur, belonging to Smt. Bitti Kunwar, one of the partners of the firm, Badshah Pasand Karyalaya, vide order dated February 20, 1969, which was later set aside. The same property was again attached, vide order dated May 18, 1974. Smt. Bitti Kunwar filed objections against the attachment on November 16, 1979, which was dismissed on March 12, 1984. A proclamation was then issued for auctioning the aforesaid house.
(3.) THE daughters of Smt. Bitti Kunwar filed a writ petition on December 15, 1986, challenging the attachment of the house, belonging to their mother on the ground that the house devolved on them after the death of Smt. Bitti Kunwar, who died on December 10, 1980, and that the recovery proceedings against that property were null and void. THE said writ petition was dismissed summarily on December 15, 1986. The petitioner then filed the instant writ petition raising the contentions that neither notices under Section 143(2) of the Act, 1961, nor the assessment orders and the demand notices were served on the partners of the firm, Badshah Pasand Karyalaya, and, therefore, no recovery proceeding could be pursued against the partners and their property. It is, therefore, prayed that all the ex parte assessment orders and proclamation issued for auctioning the house be quashed and that the respondents be restrained from pursuing the recovery proceedings on the basis of the ex parte assessment orders.;