Sabyasachi Mukharji, J. - (1.) It appears that one Raja Burman died sometime in 1923 leaving considerable properties to his sons, including his son, Narayandas Burman, the father of the petitioner. The said Narayandas Burman died in 1939 leaving again considerable properties to his wife and three sons including the petitioner. They constituted a joint Hindu undivided family. On 27th January, 1949, a partition suit was filed. Thereafter, it appears that a receiver was appointed by this court over the said properties. On 11th July, 1949, this court in the said partition suit, being Suit No. 330 of 1949, passed a preliminary decree declaring, inter alia, that Shri Bijoy Kumar Burman, being the petitioner herein, was entitled to one equal fourth part or share of the joint family properties and the other members of the family were also each entitled to one-fourth part or share thereof, Thereafter, for the assessment years 1950-51 to 1959-60, the petitioner was assessed as an individual with one-fourth share income of the property. It has been stated that on 13th April, 1957, a partition by metes and bounds of the said properties took place among the coparceners and the said partition was finalised on the 24th March, 1970. For the assessment years 1960-61 to 1964-65, the said one-fourth share income of the house property was assessed in the status of the Hindu undivided family consisting of the petitioner and his wife and sons as the petitioner is governed by the Mitakshara school, of Hindu law. On 27th February, 1965, notices were issued in the name of "Bijoy Kumar Burman and others" under Section 148 of the Income-tax Act, 1961, for the assessment years 1960-61 to 1963-64. On the 23rd March, 1965, notices were issued under Section 148 of the Income-tax Act, 1961, for the assessment years 1956-57 to 1959-60, with the approval of the Commissioner of Income-tax, West Bengal III. The said notices are the subject-matter of challenge in this application under Article 226 of the Constitution. It has to be stated that, after the issue of the notices, after February, 1965, there were correspondence between the income-tax department and the petitioner whereunder the petitioner requested the respondents to drop the proceeding and clarify the status of the petitioner. The respondent No. 1 by the letter dated 21st May. 1967, had informed the petitioner that the status of " Bijoy Kumar Burman and others " was Hindu undivided family. Thereafter, the petitioner having failed in his attempt to persuade the respondents to drop proceedings under Section 148 and under Section 139(2) of the Income-tax Act moved this application in March, 1969, and obtained a rule nisi.
(2.) On behalf of the petitioner Dr. Pal contended, firstly, that at the relevant time the Hindu undivided family had disrupted and the notices after the institution of the suit for partition could not be issued to the Hindu undivided family. He further urged that there was no reason for the Income-tax Officer to come to the belief that there was a Hindu undivided family for the relevant assessment years in respect of which the said notices had been issued or that any income belonging to the said Hindu undivided family has escaped assessment or had been under-assessed. It has to be noted that the Hindu undivided family consisting of the heirs of Narayandas Burman had never been assessed to any income-tax at any point of time. Dr. Pal, secondly, submitted, in any event, the notices were vague inasmuch as they did not indicate whose income was alleged to have escaped assessment in respect of which the said proceedings had been taken.
(3.) The first point that requires consideration therefore is, was the Income-tax Officer justified in issuing the notices under Section 148 of the Income-tax Act, 1961, for the relevant assessment years? In the affidavit-in-opposition dealing with the institution of the partition suit it had been stated in paragraph 4 as follows: " I crave leave to refer to the records and proceedings in the said suit No. 330 of 1949 and also to the decree dated the 11th July, 1949, passed therein and save as appearing therefrom I make no admission as to the allegations in the said paragraph. I deny in particular that there has been any partition in pursuance of the terms of the said decree or that the petitioner, his two brothers and his mother became the co-owners of the said properties. I say that the coparceners did not proceed to obtain actual partition and there has been no award by the commissioner of partition, appointed in the said suit.";