P. R. GOKULAKRISHNAN, J.

( 1 ) RULE. Mr. R. P. . Bhatt waives service of rule on behalf of respondents Nos. 1 to 4.

( 2 ) BY consent of the parties this Special Civil Application is taken up for final heating and the arguments were heard. This Special Civil Application is to quash dad set aside the mere show cause notice issued under Rule 73 of the Second Schedule to the Income Tax Act whereby the petitioner is called upon to show cause as to why a warrant of arrest should not be issued. The said notice is at-Annexure A to the Special Civil Application. There are further prayers to the effect that to quash and set aside the demand notice dated 3/04/1989 demanding payment of Rs. 10 50 952 plus cost and interest and the same is at Annexure `b to the Special Application; that to quash and set aside the notice of demand to defaulter Bearing No; TRO-IV/121/a/88 dated 31-5-1988 issued by the Tax Recovery Officer under Rule 2 of the Second Schedule to the Act dated 31/05/1988 which is at Annexure E to the Special Civil Application and that to quash and set aside the Income Tax Assessment Older passed by respondent No. 3 dated 5/03/1986 for the dissolved firm of Jagatbhai Punjabhai for Assessment year 1980-81.

( 3 ) THE short facts of the case for the purpose of discussion are that the petitioner is one of the partners of the partnership firm called M/s. Jagatbhai Punjabhai. This firm Consists of three persons by name Mr. Vikrambhai Punjabhai Palkhiwala Mr. Jagatbhai Punjabhai Palkhiwala and Mr. Punjabhai Mohanlal Palkhiwala. The dispute relates to the Assessment year 1980-81. On 30/03/1983 the Income Tax Officer passed Assessment Order holding that the said firm has from unexplained investment interest income of Rs. 1 31 50 and an expenditure of Rs 3 715 The Income Tax Officer determined the taxable income of Rs. 8 55 391 Aggrieved by this order the petitioner heroin filed Income Tax Appeal No. 323-114-G/asstt. Year 1980-81 for the firm of M/s. Jagatbhai on 2/04/1983 The petitioner also moved an application under Sec. 146 of the Income Tax Act for reopening of the assessment made by the Income Tax Officer. This was acceded to and a fresh Assessment Order was passed in this case. Since the petitioner did not represent in spite of the notice to the partner- ship firm an ex parte assessment order came to be passed on 5/03/1986 On 31/05/1988 the petitioner received a notice of demand under Rule 2 of the Second Schedule to the Act from the Tax Recovery Officer demanding Rs. 10 50 952 This demand notice is marked as Annexure `e to the Special Civil Application. A letter was also sent by the Income Tax Officer pointing out that the assessment order was served on the partner of firm of M/s. Jagatbhai Punjabhai and in view of the said service the demand is payable by the petitioner. The copy of the said letter is annexed as Annexure G to the Special Civil Application. It transpires from the correspondence that assessment order was made after hearing Jagatbhai Punjabhai on 5-3-1986. On receipt of the said letter and the assessment order the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals) on 19-10-1988. It is the say of the petitioner that the notice served upon Jagatbhai Punjabhai is not a valid one since this partner and the petitioner are fighting with each other by filing more than 20 suits in the City Civil Court at Ahmedabad. It is also seen from the facts of the case that a rectification of the ex parte assessment order for the Assessment year 1980-81 under Sec. 154 of the Act filed by the Officer concerned. even against this order of rejection the petitioner has preferred an appeal before the Commissioner of Income Tax- (Appeals) and the same is at Annexure `o to this Special Civil Appli- cation. Thus it is clear from the abovesaid facts that the petitioner has held appeals both against the assessment order and also against the refusal to rectify as prayed for by the petitioner by virtue of Sec. 154 of the

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