1972 (7) TMI 31 - HC - Income Tax

Hyderabad Income Tax Act - (1) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the assessment on the association was invalid? (2) Whether the Tribunal was within its powers to re-hear the entire appeal and decide all issues which did not form the subject-matter of the reference before the High Court without any direction from the High Court? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the Appellate Assistant Commissioner has the power under law to uphold the ex parte assessment on the basis of an alleged non-compliance by D. D. Italia when the Income-tax Officer making the ex parte assessment did not refer to that default at all in the assessment order ?

Issues Involved:

1. Validity of the assessment on the association of persons (A.O.P.).
2. Tribunal's power to rehear the entire appeal and decide all issues without High Court direction.
3. Appellate Assistant Commissioner's power to uphold ex parte assessment based on alleged non-compliance by a member when not mentioned in the assessment order.

Issue-wise Detailed Analysis:

1. Validity of the assessment on the association of persons (A.O.P.):

The primary contention was whether the assessment on the A.O.P. was valid. The Tribunal initially held the assessment invalid due to the lack of service of notices on all members of the dissolved A.O.P. This decision was based on the precedent set in Raja Reddy Mallaram v. Commissioner of Income-tax. However, the High Court later ruled that an assessment could be made on a dissolved A.O.P. without serving notices on all members, provided notice was served on an appropriate member. The Tribunal, upon rehearing, found that the notices served on Bansilal and D.D. Italia were invalid. Bansilal, considered the principal officer, was not properly served, and the notice to D.D. Italia was served on his employee, which was not valid. The High Court affirmed that the assessment on the A.O.P. was invalid because the Income-tax Officer had already assessed the individual members and could not reassess the A.O.P. for the same income. Additionally, proper notice was not served on the principal officer, Bansilal, making the assessment invalid.

2. Tribunal's power to rehear the entire appeal and decide all issues without High Court direction:

The Tribunal initially decided only on the invalidity of the assessment due to improper notice service. After the High Court's ruling, the Tribunal reheard the appeal and considered other objections raised by the assessee. The High Court affirmed that the Tribunal had the authority to rehear the entire appeal and decide on all issues without needing a specific direction from the High Court. The Tribunal was justified in disposing of the other contentions raised by the assessee in its appeal.

3. Appellate Assistant Commissioner's power to uphold ex parte assessment based on alleged non-compliance by a member when not mentioned in the assessment order:

The issue was whether the Appellate Assistant Commissioner could consider the validity of service of notice on D.D. Italia, which was not addressed in the original assessment order. The High Court held that the Appellate Assistant Commissioner had the jurisdiction to consider such grounds, even if not raised or determined by the Income-tax Officer. The appellate authority can reverse or modify the order on a point of law taken suo motu. Therefore, the Appellate Assistant Commissioner was within his powers to uphold the ex parte assessment based on the alleged non-compliance by D.D. Italia.

Conclusion:

The High Court concluded that the assessment on the A.O.P. was invalid due to improper service of notice and the prior assessment of individual members. The Tribunal was within its rights to rehear and decide on all issues without High Court direction. The Appellate Assistant Commissioner had the authority to consider the validity of the notice service on D.D. Italia. The reference was answered in favor of the assessee, with costs awarded against the department.

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