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Writ Petition No. 396 of 1962, decided on 25th September 1963.

‑‑‑ Ss. 25‑A (2) 8t 46 (2)‑‑Assessment of Hindu undivided family‑‑ Recovery of tax‑Partition of family subsequently taking place -Proceedings for recovery of tax from individual members of divided family without apportionment of liability and defence of notice‑Held, not valid in law.

A. Ranganathan v. Addl. Income‑tax Officer (1960) 39 1 T R 730 and Addl. Income‑tax Officer v. A. Th1mmayya (1962) 461 T R 999 fol.

P. Rama Row for Petitioner:

Venkatappa for C. Kondaiah for Respondents.

In this writ petition, two points are urged. Firstly, that the petitioner cannot be made liable for the entire tax liability of the joint family and secondly that unless a notice of demand under section 25‑A (2) apportioning the tax liability is given to him, his properties cannot be attached to recover the liability of the joint family and no proceedings can be taken to collect the tax from him. The petitioner is one of the members of the joint family which was assessed for the years 1948‑49, 1949‑50, 1950‑51 and 1951‑52. There was no application under section 25‑A for a declaration that the joint family was divided as from March 31, 1951. Though the assessments for these years were made earlier on different dates, the order under section 25‑A was only passed on January 5, 1957, holding that there was a division of the joint family for the purpose of section 25‑A from March 31, 1951. At the time when this order was made, the Income‑tax Officer omitted to make a demand notice under section 25‑A (2) apportioning the tax liability between the mem bers of the joint family. Without doing this, the petitioner's properties were sought to be made liable and they were attached. It is with respect to this that this petition has been filed.

There are two decisions of this Court, one by Seshachalapathi, J. in A. Ranganatham v. Additional Income‑tax Officer, Cuddupah (1960) 39 I T R 730 which on appeal was confirmed by a Bench of this Court consisting of the Honourable Chief Justice and Chandrasekhara Sastri, J. in Additional Income‑tax Officer, Cud dapah v. A. Thimmayya (1962) 46 I T R 999. Both these decisions uphold the contention of the learned Advocate for the petitioner that unless a notice of demand under section 25‑A (2) apportioning the tax liability between the members of the joint family is made, properties of any single individual cannot be attached. The Bench in the latter case pointed out, in respect of the contention raised by the Advocate for the Department that section 25‑A is applicable only to assessment years which followed upon the date of partition, that contention is unsubstantial as not warranted by the language of the section which refers only to the date when the assessment is made and not to the assess ment year. The section itself begins with the words "where at the time of making an assessment under section 23 ...." The relevant time is there fore, the date of making of the assessment and not the year of assessment in regard to which the assessment is sought to be made subsequently. From this decision, it is clear that unless the procedure laid down in section 25‑A (2) by issue of a notice of demand, apportioning the tax liability in respect of the years during which the joint family was liable under assessment, is A issued, no attachment of properties or collection of tax can be made. In my, view, it will be open to the Income‑tax authorities to take steps to issue the necessary demand notice under section 25‑A (2).

Sri Venkatappa of the Department has cited a decision in Kalwa Deva dattam v. Union of India (1963) 49 I T R 165 (S C). There though a prayer was made for an order of partition and the Income‑tax Officer assessed the parties without making that order, the tax liability was joint and several. The several points that were considered by the Bench of this Court in Additional Income‑tax Officer, Cuddapah v. Thimmayya specifically under section 25‑A (2) did not fall for determination by their Lordships of the Supreme Court and that the case does not directly apply to the facts and circumstances of this case.

In so far as the other question is concerned Sri Rama Row says that be never questioned the assessments in this writ petition but he has only challenged the whole of his liability being foisted on him by non‑issue of the notice of demand under section 24 .A and has not even argued any point challenging the assessments as such.

In the result, this writ petition is allowed with costs. Advocate's fee Rs. 100.

Petition allowed.

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