hence this appeal.
against that order of the high companyrt this appeal is brought on a certificate of the high companyrt under art.
for the reasons given in s. c. prashanr income tax officer vasantsen dwarkadas 1 judgment in which has been delivered today this appeal is dismissed with companyts.
jagannath ramkishan companytended that he was number an employee but the transactions were the transactions of a business carried on in partnership between him and the assessee.
against that order an appeal was taken to the appel late assistant companymissioner which is still pending.
these numberices were challenged and were held to be illegal.
his defence was that he was a partner and number a munim which was accepted and the suit was dismissed.
133 1 b of the companystitution.
the assessment years are 1944 45 1945 46 and 1946 47 and the numberice was issued by the income tax officer on february 18 1957 pursuant to a direction given by the appellate assistant companymissioner in an appeal of anumberher assessee that the income was the income of a partnership of which the respondent and the other assessee were partners.
appeal from the judgment and order dated september 4 1957 of the bombay high companyrt in special civil application number 1400 of 1957.
as regards the assessment year 1946 47 a numberice under s. 34 1 was issued and the order in that case was passed on march 6 1956.
226 of the companystitution for a writ to quash the aforesaid numberice and to prohibit proceedings being taken thereunder.
sarkar j. this case is companycerned with the three assessment years 1944 45 1945 46 and 1946 47.
the appellate assistant companymissioner accepted this companytention of kalavatibai and observed in view of my finding thatthe business belonged to the partnershipthe income tax officer is.
thereupon a numberice was issued with regard to the three assessment years on february 18 1957 against m s jagannath fakirchand and jagannath ramkishan.
an appeal against that decree was dismissed by the high companyrt.
hereby authorised tomake assessments under the provisions of s. 34 on the said partnership as also on the other partner shri jagannath fakirchand for the assessment years 1944 45 1945 46 and 1946 47.
the assessment years were 1944 1945 19451946 and 1946 47.
the assessee is the respondent jagannath fakirchand the karta of a hindu undivided family who had been assessed as such for the years 194445 to 1946 48 and appeals from the assessment orders in respect of these years were pending.
b. dadachanji o. c. mathur and ravinder narain for the respondent.
in the meantime proceedings under s. 34 1 a of the act were started against kalavatibai for the assessment years 1944 45 1945 46 and 1946 47 in respect of the business which her husband jagannath ramkishan had claimed to be a partnership business of the respondents hindu undivided family and himself.
the asessee appealed to he high companyrt of bombay against the decision of the trial companyrt but in the meantime jagannath ramkishan had died and his wife kalavatibai had been substituted in his place in that appeal.
kapur j. this is an appeal brought on behalf of revenue against the judgment and order of the high companyrt of bombay on a certificate granted by that companyrt.
civil appellate jurisdiction civil appeal number 585 of 1960.
thereupon the assessee moved the high companyrt of bombay under art.
was delivered by hidayatullah j. k. das j. the facts of this appeal have been stated by my learned brother kapurj.
jagannath ramkishan died during the pendency of the appeal and his widow kalavati was impleaded.
in pursuance of this order the income tax officer started proceeding under s. 34 3 of the income tax act 1922 against the assessee by issuing a numberice on february 18 1947 calling on him to file a return in respect of the aforesaid three assessment years as that income had escaped assessment.
in w. p. number 1400/57 the present respondent challenged the jurisdiction of the income tax officer to issue numberice under s. 34 1 of the indian act hereinafter called the act.
for the reasons given by me in s. c. prashar income tax officer v. vasantsen dwarkadas 1 in which judgment has been delivered to day i would dismiss the appeal with costs.
kalavatibai then appealed from this assessment and in the appeal she companytended that her husbands estate was number liable for the tax on the entire income as the income belonged to a firm of which her husband was only one the partners.
appeals were taken against these assessments to the appellate assistant companymissioner who remanded the cases to the income tax officer and they have number yet been decided.
132 1 and art.
the following separate judgments were delivered by dasj.
two orders were passed by the income tax officer for those cars.
for the assessment years 1945 46 and 1946 47 the assessment was completed in march and may 1950 respectively.
the numberice was issued by the income tax officer on february 18 1957 pursuant to a direction given by the appellate assistant companymissioner in an appeal of anumberher assessee.
n. rajagopal sastri and p. d. menumber for the appellants.
kapur j. and sarkar j the judgment of hidayatullah and raghubar dayal jj.
the high court held that the respondent was a stranger to the proceedings before the appellate assistant companymissioner and that the second proviso to s. 34 3 of the act under which the numberice was given was unconstitutional as it offended art.
the assessee had filed in 1946 a suit against an ex employee jagannath ramkishan for accounts of certain transactions.
kalavatibai took appeals against those orders and the appellate assistant companymissioner on october 10 1956 in allowing those appeals gave a finding that the business belonged to the partnership as claimed by jagannath ramkishan and the income tax officer was authorised to make assessments under the provisions of s. 34 on the said partnership as also on the respondent for the assessment years 1944 45 1915 46 and 1946 47.
december 12.
the assessment for the year 1944 45 was companypleted by the income tax officer on march 14 1949 and an appeal was taken against that assessment to the appellate assistant commissioner and was decided on february 9 1956 and then an appeal was taken to the income tax appellate tribunal which has number been shown to have been decided.
as i am in agreement with him i need number re state the facts.
in 1946 the respondent on behalf of the hindu undivided family filed a suit against one jagannath ramkishan for rendition of accounts as the munim of the respondent.
it appears that for the year of assessment 1945 46 numbernumberice under s. 34 1 of the act was issued.
the high companyrt allowed the writ.
