PULIPATI SUBBARAO AND CO Vs. APPELLATE ASSTT COMMISSIONER OF INCOME TAX VIJAYAWADA

JUDGEMENT

(1.) This is an application for the issue of a writ of prohibition restraining the Income-Tax Officer, Vijayawada, from making a de novo assessment.

(2.) In order to appreciate the contentions raised in this petition, it is necessary to state the material facts. The petitioner is a firm consisting of five partners and carrying on commission and other kinds of business at Vijayawada. It was previously assessed in the status of a registered firm. For this assessment year 1952-53, the Income-tax Officer, Vijayawada, assessed the petitioner on the 28/06/1953, and determined its loss in a sum of Rs. 100980.00. In making the assessment the officer treated the petitioner as an unregistered firm on the ground that it did not file an application for registration. Aggrieved by the said order, the petitioner preferred an appeal before the Appellate Assistant Commissioner of Income-tax who by his order dated the 17/09/1954, set aside the assessment and directed the Income-tax Officer to receive a duplicate application for registration from the petitioner and to deal with it according to law. By the time the appeal was disposed of, the officer who made the assessment was succeeded by another. The succeeding incumbent of the office issued a memo to the petitioner on the 19/05/1956, calling upon it to produce its account books by the 28/05/1956. The petitioner objected to this procedure. It contended that the assessment order passed by the Appellate Assistant Commissioner did not envisage a de novo assessment and that the only matter which the Income-tax Officer had to consider was the application for registration. In this writ petition, the petitioner has contended that the Income-tax Officer has no jurisdiction to make a de novo assessment.

(3.) In the counter-affidavit filed by the Income-tax Officer, it is stated that the earlier order of assessment passed by his predecessor in office having been set aside by the Appellate Assistant Commissioner the earlier assessment is non est in law and that therefore he has a duty to make a fresh assessment on the material before him.