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2017 (1) TMI 1569 - AT - Income TaxReopening of assessment - notice against firm dissolved - Held that - AO has just made a passing remark that the 148 notice has been affixed on 16.04.2009 which does not satisfy the requirement of law, and for failure of proper serving of notice, the usurpation of the jurisdiction itself of the AO is fragile in the eyes of law. Not only on this ground but on another ground also the issuance of notice u/s 148 against the firm M/s B.K. Agencies is illegal because of the simple fact that the firm was dissolved on 01.04.2014 itself. It is a matter of record and paper book page no. 1-6 factually reflects that the partnership firm M/s B.K. Agencies got dissolved on 01.04.2004 because there were only two partners in the firm and Smt. Aparna Phumra one of the partners has retired from the partnership, so, therefore, in the eyes of law the assessee partnership firm stands dissolved. Therefore, the service of notice itself to an assessee who is no more partnership firm and the assessment framed thereafter is null in the eyes of law. So, in the peculiar circumstance of the case, on both these counts aforestated the order impugned is void in the eyes of law. Since the re-opening u/s 147/48 itself stands quashed, the penalty also does not survive and so is also quashed. - Decided in favour of assessee.
Issues:
1. Appeal against order of CIT(A) for assessment year 2003-04 - quantum addition and penalty confirmed. 2. Validity of notice u/s 148 served on the assessee. 3. Dissolution of partnership firm and its impact on assessment proceedings. 4. Legal implications of serving notice on a dissolved firm. 5. Condonation of delay in filing appeal before CIT(A). 6. Jurisdiction of AO to re-open assessment and impose penalty. Issue 1: Appeal against CIT(A) order The assessee filed appeals against the CIT(A) order for assessment year 2003-04, challenging quantum addition and penalty confirmed by the CIT(A). The grounds of appeal highlighted issues related to the authority to sign the return of income under section 140 and the timing of service of assessment order. The additional grounds raised questions of law and were admitted based on a Supreme Court judgment. Issue 2: Validity of notice u/s 148 The AO re-opened the assessment under Section 148, citing discrepancies in the valuation of closing stock. The notice u/s 148 was served by affixture on the assessee, leading to a best judgment assessment. The appeal before CIT(A) was dismissed on grounds of unauthorized signatory and delay in filing the appeal, with the AO claiming timely service of the order and demand notice. Issue 3: Dissolution of partnership firm The partnership firm, M/s B.K. Agencies, was dissolved on 1st April 2004 due to the retirement of one of the partners. The assessee, Smt. Aparna Phumra, retired from the firm following a marital dispute, leading to the dissolution of the firm as per the Partnership Act. The deed of dissolution and legal documentation supported the cessation of the firm's existence. Issue 4: Legal implications of serving notice on dissolved firm The AO's service of notice u/s 148 on the dissolved firm, M/s B.K. Agencies, was legally questionable. The notice was affixed without proper adherence to procedural requirements, raising doubts on the validity of jurisdiction for re-opening and reassessment. The dissolution of the firm invalidated the assessment proceedings against a non-existent entity. Issue 5: Condonation of delay in filing appeal The delay of 701 days in filing the appeal before CIT(A) was not condoned due to insufficient cause presented by the appellant. The discrepancy in the receipt date of the demand notice and order was cited as misleading, leading to the dismissal of the appeal by CIT(A) on grounds of untimely filing. Issue 6: Jurisdiction of AO The AO's re-opening of the assessment and imposition of penalty were based on the re-assessment under Section 147/148. However, the quashing of the re-opening invalidated the penalty imposition, as the jurisdiction to re-assess the dissolved firm was legally untenable. In conclusion, the appeals of the assessee were allowed, highlighting the legal flaws in the assessment proceedings, notice service, and jurisdiction of the AO. The dissolution of the partnership firm and procedural irregularities rendered the orders against the assessee null and void, leading to the quashing of the assessment and penalty.
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