2005 (4) TMI 250 - AT - Income Tax

Summary

Issues Involved:
1. Legality of proceedings initiated under Section 147.
2. Validity of protective assessments made in the hands of legal heirs.
3. Calculation of tax and interest without allowing credit for TDS.
4. Legality of 'protective recovery' proceedings.

Detailed Analysis:

1. Legality of Proceedings Initiated Under Section 147:
The primary grievance of the assessee was that the CIT(A) was not justified in sustaining the action of the AO for initiating proceedings under Section 147, asserting that such action was void ab initio. The assessee contended that the 'reasons to believe' did not exist, and the AO did not even have 'reasons to suspect'. The Department had accepted that late Sh. D.D. Sehgal held shares in his representative capacity as a partner of M/s Sehgal Oil & General Mills. Despite this, the AO initiated proceedings under Section 147, which the assessee argued was illegal and bad in law. The CIT(A) failed to address these grounds or provide reasons for dismissing them.

2. Validity of Protective Assessments Made in the Hands of Legal Heirs:
The CIT(A) upheld the protective assessments made by the AO in the hands of the legal heirs of late Sh. D.D. Sehgal. The CIT(A) acknowledged that shares were held by Sh. D.D. Sehgal in his representative capacity but argued that after his death, the assets were to be distributed, and no evidence of distribution was provided. Consequently, the CIT(A) justified the protective assessments due to the non-distribution of assets and ongoing tax evasion. However, the CIT(A) did not provide detailed reasons for agreeing with the protective assessments, leading to the appeal by the assessee.

3. Calculation of Tax and Interest Without Allowing Credit for TDS:
The assessee also raised concerns regarding the calculation of tax and interest without allowing credit for TDS. This issue, along with the others, was restored to the file of the CIT(A) for readjudication as per law, ensuring proper opportunity for the assessee to present their case.

4. Legality of 'Protective Recovery' Proceedings:
The assessee raised an additional ground regarding the initiation of 'protective recovery' proceedings by issuing a demand notice under Section 156 along with the 'assessment'. The assessee argued that while 'protective assessment' is permissible, 'protective recovery' is not allowed under law. The CIT(A) was directed to consider this ground, supported by various High Court judgments, which held that protective recovery of tax is not permissible. The CIT(A) was instructed to record findings on this issue while deciding the appeal.

Conclusion:
The Tribunal set aside the orders of the CIT(A) and restored the matter to her file for fresh adjudication, ensuring a detailed and reasoned order addressing each ground of appeal. The Tribunal emphasized the need for a speaking order, providing groundwise reasons for agreement or disagreement with the assessee's submissions. All appeals of the assessee were allowed for statistical purposes, and the CIT(A) was directed to consider the outcome of the pending appeals in the High Court regarding substantive assessments.