9911796707
TMI Blog1978 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... His six minor sons, Shri Jagdish Prasad, Shri Gauri Shanker, Shri Kailash Chand, Shri Phool Chand, Shri Ratan Lal and Shri Om Prakash were also admitted to he benefits of the partnership in the said firm. In compliance with the notice under s. 34 he filed a return showing the status of HUF declaring an income of Rs. 20,136 being 2/16 share of profit as determined in the case of the firm Jagdish Pd. Satya Prakash (ITA N. 5271 of 1964-65, decided on 3-3-65). The ITO, however completed the assessment in the status of Individual on total income of Rs. 80,812 (after including Rs. 60,676 representing the share income of the minor sons in the said firm). The assessee went in appeal and the matter ultimately reached the Tribunal. The Tribunal disposed of the matter on3rd March, 1965. One of the grounds taken before the Tribunal was in regard to the validity of the assessment. It was urged that no proper notice was issued against the assessee in the status of an individual and hence no return was filed by him in that status. The return filed by the assessee was in the status of HUF and on the basis of the said return no assessment could be raised on the assessee in the status of an individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10th May, 1966. The ITO completed the assessment on20th Sept., 1966under ss. 144/147. The assessee s request to reopen the assessment under s. 146 was also rejected. However, the said prayer of reopening the case was accepted by the AAC in appeal under s. 146. The ITO thereafter made an assessment under s. 143(3)/147 vide order dt.11th Dec., 1975. He discussed the assessee s contentions as mentioned by the assessee in his written replies dt.20th May, 1975and23rd June, 1975. The ITO placed reliance on the statement of the assessee recorded on31st Aug., 1962which was to the following effect: "My father died when I was 2 years of age. I was brought up by my uncle (elder brother of my father). At the age of about 20 years I came toAligarhand served as munim. I became a partner in the firm, Jagdish Prasad Satya Prakash. I invested about Rs. 1,000 in it. The money was out of amount received at the time of my marriage by me and my wife. I had no money of my father at all for investment in the firm. My father did not leave any property nor I have any now. My father had a very meagre income and so left nothing at the time of his death." He held that Shri Hari Baboo has no joint family n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in this case was bad in law. In paragraph 7 the AAC held that since during the relevant accounting period of the firm Jagdish Pd. Satya Prakash had its headquarters atDelhiand Shri Hari Babu lived in a rented house inDelhi, the ITO,Aligarhhad no jurisdiction to make the assessment in this case. In this connection he also referred to a decision of the Allahabad High Court in respect of references made to it in the case of minor sons of the assessee holding that the IT authorities atAligarhhad no jurisdiction over them in the asst. yr. 1952-53 (ITR Nos. 718, 719 720 dt. 26th Feb., 1973). 5. It is against this order of the AAC that the Department has come up in appeal to the Tribunal. The Departmental Representative has challenged the three findings recorded by the AAC against the Department. It was submitted that the point in issue was whether the income was earned by the HUF or the Individual. In this submission the Tribunal has nowhere given any specific finding in this regard. As a matter of fact it left the matter open for decision and it was precisely for this point that the Tribunal set aside the original assessment order made by the ITO in the capacity of HUF. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order made in the capacity of an individual, which ultimately went to the Tribunal. He also explained the issue in regard to the directions of the Tribunal. It was submitted that when all the facts were placed before the ITO at the initial stage and the ITO chose to make an assessment in the status of the individual as against the assessee s claim of HUF it cannot be said that the Department can make the re-assessment which is nothing else but a mere change of opinion. It was also submitted that the minors were assessed as would be clear from pages 31 and 34 of the paper book. He did not challenged the jurisdiction point, that is, it lay with the ITO, Delhi or the ITO, Delhi or the ITO, Aligarh, except the legality of the ITO assuming jurisdiction for issue of notice. 7. In our opinion there is no force in this appeal. We agree with the contention of the assessee s representative that all the material facts were disclosed by the assessee at the time of the original assessment itself when he filed the return in compliance with the notice issued under s. 34 in the status of HUF but the assessment was completed by the ITO in the status of individual. This assessment was not appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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