Law: Income Tax Act, 1922

Section: 34(b),34,23(3),66(1),80,30,63(3),22

Income-tax Act, 1922 -Sections 5(5), 34, 63(3) -- Notice -Issue of notice -Whether condition precedent for making assessment -Held yes -- Notice -Notice issued in the name of Association of persons -Return filed by individual -Whether individual should be deemed to have received the notice -Held no -- Provisions of sub-section (3) of Section 63 -Whether declaratory in nature -Held no -Whether retrospective in operation -Held no -Notice issued and served on person other than the assessee -Provisions of sub-section (3) regarding validity of notice -Whether attracted -Held no -- Notice -Issuance of notice a pre-condition for making an assessment -- Where no notice was served upon assessee, provision of Section 63(3), held, would not be attracted -- Language of Section 63(3) neither declaratory in nature nor retrospective in operation rather enacts a new concept to far as the service of notice was concerned -- Scope and application of Section 5 -Non-issuance of notice under Section 34 -Effect -Income-tax Officer is not empowered to act against the provisions of the Act -Provision of Section 5 does not make functionary above the law or give him any power to act arbitrarily against express provisions of the Act and does not override the provisions of Section 34 -Defect of non-giving of notice under Section 34, was, therefore, not just an irregularity which could be cured under any provision of the Act JUDGMENT The judgment of the court was delivered by MUSHTAQ HUSSAIN J.--For the assessment year 1952-53 the General Index Register of the Income-tax department, Lyallpur bore the name of-- (a) Messrs. Abdul Hamid Muhammad Jamil, Lyallpur--An Association of Persons; and (b) Abdul Hamid Muhammad Jamil--An individual carrying on business in this name and style. 2. The Association of persons referred to above filed a return for the year 1952-53 which contained a note-- "Association of Persons dissolved on 3rd February, 1952". The assessment of the income of the Association of Persons for the period ending 3rd February, 1952, i.e., up to the date of dissolution was finalised on the 18th of December, 1953. 3. The other assessee, i.e., the "individual" filed a return for the…

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