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TMI Blog1983 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 (Hyd.) of 1979, dated 4-9-1981, wherein it was held that the firm stood dissolved on January 1974 when the suit was filed. While it upheld the stand of the revenue that there was an AOP, it took the view that there could not be a single assessment as an AOP. For the assessment year 1976-77, the assessment was made on the official receiver. It is not clear as to who filed the return. However, it is clear that notice under section 143(2) of the Income-tax Act, 1961 ('the Act') was served both on the official receiver and the present appellant as the assessee. During the hearing also, it was the assessee along with his authorised representative who were heard. The assessment was made as AOP on Rs. 1,70,780 as it represented the capital gains on the sale of the property taken over by the receiver. The assessee's appeal reiterated his earlier stand asking for treatment as a registered firm and sought separate assessment even as AOP. The first appellate authority, however, dismissed the appeal on the ground that it was not open to Shri Chittaluri Peda Venkata Subbaiah who had signed the appeal form to have filed an appeal on behalf of a firm which did not exist. When he wanted to dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been tiled only by the receiver inasmuch is the assessment was made on the receiver. He also sought to justify the assessment on merits. He claimed that the earlier order of the Tribunal would not be a bar to a correct assessment on the AOP directly in this year in the facts and circumstances of the case. 3. We have carefully considered the records as well as the arguments. The return as well as the registration application were purportedly on behalf of the firm. If, in the opinion of the ITO, there was no firm, he would ordinarily pass an order to that effect. The aggrieved party claiming the status of the firm would certainly be entitled to agitate the question before the appellate authorities. Any other view would deprive the assessee of his valuable right of appeal conferred under section 246 of the Act including the right of appeal specifically on the question of status under clause (c) of sub-section (1) of section 246. We are, therefore, unable to concur with the finding of the first appellate authority that the appeal could not be entertained merely because the Tribunal had held for an earlier year that there was no firm in the eye of law on identical facts. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bbaiah as per records has certainly been treated as a member of the AOP as an erstwhile partner. He had filed the necessary papers including the application for registration and he was heard during the assessment. As pointed out on behalf of the assessee before the first appellate authority, he was also expected to meet the demand. It stands to reason that the receiver is not expected to pay the money out of his own pocket. He can be paying any demand only on behalf of the person/persons whom he represents. Section 161 of the Act requires that the representative-assessee should be assessed 'in like manner and to the same extent' as the beneficial owner. Section 246 gives the right of appeal to 'any assessee' who may be aggrieved with an order of the ITO. It has been repeatedly held that a "person beneficially entitled to the income is nevertheless an assessee within the meaning of the section and has, therefore, a right of appeal". A member of a disrupted family or a dissolved firm or AOP, a beneficiary of a trust or a non-resident could all file appeals though the assessment itself may not have been made on them. It is because they are interested in the outcome of the assessment d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative. It is not necessary to pursue the matter further. . . ." In assessee's case before us, Shri Chittaluri Peda Venkata Subbaiah who signed the appeal papers as appellant claimed to be the main partner in the alleged firm which filed the return as well as the registration application. According to the ITO also, it is the self-same erstwhile partners who constituted the AOP in respect of the self-same source of income offered in the assessment. Whether as a partner as claimed by him or as a member of AOP as assumed by the ITO or as a person entitled to be assessed on his share of the income from the assets of the erstwhile firm in his own separate assessment as concluded by the Tribunal, he is intimately and vitally connected with the outcome of the proceedings under the Act. In fact, he becomes intimately connected as 'any person' entitled to object to the order in the illustration given by the Supreme Court in the extract reproduced earlier. Further, he brought to the notice of the first appellate authority that he was expected to meet the disputed demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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