R.N.Pyne, J. - (1.) The subject-matter of this appeal which is directed against a judgment and order of Sabyasachi Mukharji J. dated December 18, 1975 is a notice dated 25th February, 1975, under Section 148 of the I.T. Act, 1961, for the assessment year 1966-67.
(2.) The appellant No. 1 is a foreign non-resident company and has its registered office at Singapore. It is stated that the appellant did not have any place of business or establishment or connection with India. Up to 1955, the appellant held all the shares of M/s. Turner Morrison & Co. Ltd., a company incorporated under the Indian Companies Act, 1913. Since 1956, the appellant No. 1 has been holding 51% shares in the Indian company. The appellant No. 2, B. N. Garg, was appointed a director of the appellant No. 1 for the purpose of looking after certain pending litigations in India. It appears that on the 6th December, 1974, the ITO, Company Dist. II, Calcutta, wrote a letter to the appellant No. 2 for and on behalf of the appellant No. 1 wherein it was stated that the income had escaped assessment in terms of Clause (a) of Section 147 and, therefore, appellant No. 2 was asked to show cause why assessment for the years 1965-66, 1966-67 and 1967-68 should not be reopened. In that letter it was stated that the ITO intended to treat the appellant No. 2 as the principal officer of the company, i.e., appellant No. 1, under Section 2(35)(b) of the I.T. Act, 1961, as according to the ITO the appellant No. 2 was looking after and managing the affairs of the appellant No. 1 because there was no person other than the appellant No. 2 to look after and manage the affairs of the appellant-company including its legal affairs. By that letter the appellant No. 2 was asked to submit his representation by 28th December, 1974. Portion of the said letter relevant to the instant appeal is as follows : "In this connection I am to state that you have been treated as the 'principal officer' of the company Under Section 2(35)(b) of the I.T. Act, 1961, as you are looking after and managing the affairs of the company in India and as there is no other person than you to look after and manage the affairs of the company including legal affairs."
(3.) In his reply dated 24th February, 1975, the appellant No. 2 stated that the said letter dated 6th December, 1974, was received by him on or about 19th February, 1975, and that he was only looking after the legal cases of the appellant-company in India, and, therefore, he could not be made the "principal officer" of the appellant-company. Thereafter, on 25th February, 1975, the impugned notice under Section 148 of the I.T. Act was issued. The said notice was addressed in the manner as follows : "To M/s. Hungerford Investment Trust Ltd. represented by Sri B.N. Garg., Director, 3, Park Mansion, Park St. Cal.";