A notice under Section 148 of the Income-tax Act, 1961, is valid if it is in substance and effect in conformity with the intent and purpose of the Act, and a mistake in the description of the assessee does not invalidate the notice.

PINAKI GHANDRA GHOSE, J.

( 1 ) THE petitioner has challenged a notice dated May 24, 1993, issued by the Income-tax Officer, respondent No. 1 herein, under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), and the reassessment proceedings under Section 147 of the said Act for the assessment year 1989-90 and all proceedings relating thereto and thereunder on the ground that the conditions precedent for the assumption of jurisdiction have not been satisfied and as such notice and assessment proceedings are wholly without jurisdiction.

( 2 ) THE facts of the case briefly are as follows : the writ petitioner is the sole executor to the estate of Sundar Devi Rampuria who died on October 28, 1975, leaving a registered will dated May 6, 1964 (hereinafter referred to as "the said deceased" ). A probate of the said will has been granted to the petitioner. According to the petitioner, apart from the status of the said executor to the estate of the said deceased, the petitioner is also regularly assessed separately with his own income in the status of an "individual".

( 3 ) THE petitioner duly filed a return for the assessment year 1989-90 as sole executor. The petitioner has further contended before this court that the reasons recorded by respondent No. 1 annexed to the affidavit-in-opposition filed in this proceedings show that the Assessing Officer has reason to believe that the income has escaped assessment in respect of the share trading loss of Rs. 99,250 for the said year. It further appears from the said affidavit that the executor has no power to carry out any business and he has a right only to execute the estate in terms of the will. It has also been stated that the petitioner carried on a business in his personal capacity and not as an estate. The estate is not responsible for the loss incurred by the petitioner in respect of the business. Accordingly, the respondents did not allow the petitioner to set off the business loss from the income of the estate.

( 4 ) ACCORDING to the petitioner, the assessment for the assessment year 1990-91 was completed under Section 143 (3) of the said Act rejecting the claim of loss on share dealing business, amounting to Rs. 1,09,540. The appeal preferred by the petitioner was allowed by the first appellate authority and the appellate authority held that the Assessing Officer was not justified in not allowing the loss suffered in the business of share dealing while computing the total income.

( 5 ) ACCORDINGLY, it is submitted that further assessment is not permissible in law and the impugned notice under Section 148 of the said Act is invalid, baseless and which is liable to be quashed.

( 6 ) THE contention of the petitioner that the assessment year 1990-91 was duly completed by the Assessing Officer under Section 143 rejecting the claim of the petitioner to adjust the loss amounting to Rs. 1,09,540 in respect of the share dealing business. An appeal was duly preferred by the petitioner before the first appellate authority which was duly allowed by the said authority whereby the appellate authority held that the disallowing of the loss from the computation of the total income was not justified by the Assessing Officer.

( 7 ) IN these circumstances, the learned advocate appearing on behalf of the petitioner contended that further assessment is not permissible under the law and, therefore, the impugned notice under Section 148 of the said Act is invalid and is liable to be quashed. He further relied upon the judgments reported in V. M. Raghavalu Naidu and Sons v. CIT/cept [1950] 18 ITR 787 (Mad) ; Asit Kumar Ghose v. CAIT [1952] 22 ITR 177 (Cal) and Administrator-General of West Bengal for the Estate of Raja P. N. Tagore v. CIT, and contended that the petitioner has a right to continue the share dealing business left by the said deceased.

( 8 ) HE further relied upon the judgments reported in Ganga Saran and Sons P. Ltd. v. ITO; ITO v. British Paints In

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