1986 PLP 479 (PTD)

VIJAYVARGIYA, J.--The facts giving rise to this petition under Articles 226 and 227 of the Constitution are as follows:-- According to the petitioner she alongwith the respondents Nos.2 to 9 formed a co-ownership for the purpose of constructing godowns at Dewas and earning income therefrom. According to the petitioner the income earned by the co-ownership from the said property has to be assessed under section 26 of the I. T. Act and the petitioner and other co-owners cannot be assessed as an association of persons. The respondent No. 1 served a notice on 24-3-1981 under section 148 of the I T. Act on the petitioner and the other co-owners describing them as association of persons and stating that the income of the petitioner and others constituting the association of- persons in respect of which they are assessable to tax for the assessment year 1978-79 has escaped assessment and, therefore, it is proposed to assess them for the said assessment year. The petitioner and other persons constituting the association of persons were directed to file return in the prescribed form within 30 days of the receipt of the notice. The petitioner in this petition .has prayed that the aforesaid notice issued by the respondent No. 1 to the petitioner be quashed as the respondent No. 1 acted without jurisdiction in issuing, the said notice. In the return it is stated that the petitioner and others constituted an association of persons and they cannot be said to be co-owners of the property and are not entitled to be assessed under section 26 of the I.-T.O Act as contended by the petitioner.

2. Having heard the learned counsel for the parties we have come to the conclusion that this petition is liable to be dismissed on the short ground that the petitioner would be free' to raise the question before the I.-T.O. that the ,petitioner and others are co-owners of the property and are entitled to be assessed under section 26 of the I.-T. Act and that they cannot be assessed as an association of persons. The question, if raised, shall be considered by the I.-T.O. and if the petitioner is aggrieved by the order passed by the I.-T.O. in this regard she can pursue the remedy available to her under the I.-T. Act. It cannot be said that the I.-T.O., respondent No. 1, has no jurisdiction to issue the impugned notice under the provisions of section 148 of the I.-T: Act. The petitioner is, therefore, not entitled to any relief in this petition.

3. As a result of the discussion aforesaid this petition is dismissed. In the circumstances the parties shall bear their own costs of this petition. The outstanding amount of security deposit be refunded to the petitioner after 'verification. M.B.A. Petition dismissed.