Sabyasachi Mukharji, J. - (1.) In this reference under Section 66(2) of the Indian I.T, Act, 1922, as directed by this court, the following two questions have been referred to this court. "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the pre-requisite condition for initiating proceedings under Section 34 of the Indian Income-tax Act, 1922, was not satisfied and that consequently the assessment made under Section 34(1)(a) of the said Act is liable to be cancelled ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessment made under Section 34(1)(a) of the Indian Income-tax Act, 1922, was not valid on the ground that the assessee was assessed in the status of an association of persons ?"
(2.) To answer these questions, it must be stated that three brothers, Sambhu Nath Barick, Sarojendra Nath Barick and Sachindra Nath Barick, jointly purchased a house property situated at No. 84, Cornwallis Street, Calcutta. The purchase deed mentioned the three persons as joint owners. After the purchase of the property, a portion of it was demolished and in its place a cinema house was constructed and the machinery etc., were installed in the course of a few years. The cinema hall was opened for exhibition in 1954. During the period of construction, a cash book was maintained in the name of M/s. Barick Screen Corporation and accounts were audited by M/s. Green & Co. Subsequently, a partnership deed was executed on June 11, 1954, by which a partnership in the name of M/s. Barick Screen Corporation was formed to run the cinema hall. Since, in the opinion of the ITO, the income of M/s. Barick Screen Corporation had escaped assessment for the assessment year 1952-53, he intended to initiate reassessment proceedings against it. For this purpose, a proposal for issuing notice under Section 34(1)(a) of the Indian I.T. Act, 1922, was submitted by the ITO, Cinema Circle, A-Ward, to the, CIT. It would be necessary to set out the name in which the action was sought for, which was as follows : " Name and address of the assessee ... Messrs. Barick Screen Corporation84, Cornwallis Street, Calcutta., Status ... U.R.F."
(3.) The Commissioner gave his approval on May 7, 1959. Pursuant to this, notice dated May 21, 1959, under Section 34(1) of the Act was issued that was addressed as under : "M/s. Barick Screen Corporation, 84, Cornwallis Street, Calcutta.";