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TMI Blog2002 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... cts giving rise to the present appeal are as follows:- 3. An extent of 6.12 acres of agricultural lands in Somalwada Tehsil, Nagpur District, hereinafter referred to as 'the property' belonged to one Laxmanrao Sathwane. His four sons and a daughter and widow, viz., (1) Shriram Sathawane, (2) Shri Dhanaji Sathwane, (3) Jagoba Sathwane (4) Shankarrao Sathwane (son of a predeceased son Mr. Ramakrishna Sathwane, (5) Gunabai (Daughter) and (6) Banabai (Widow) became entitled to the property on his death intestate in the year 1973. By an agreement for sale dated 7-5-1981, the legal heirs agreed to sell the property to Engineers Co-operative Housing Society. An application for a certificate under section 230A of the Income-tax Act, 1961 was made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 264 of the Income-tax Act before the Commissioner of Income-tax, Nagpur on 22-2-1988 praying that the ex parte order of assessment be set aside as he could not attend the hearing before the Assessing Officer due to his ignorance of the legal implications as he was illiterate and could not get proper legal counselling. The CIT by his order dated 12-8-1991 dismissed the revision petition. 6. A notice of demand dated 29-12-1997 was served on the appellant in the present appeal, viz., Mr. Shankarrao Sathwane son of Ramkrishna Sathwane, (hereinafter referred to as 'the appellant') by the Tax Recovery Officer demanding payment of a sum of Rs. 1,45,552 on or before 16-1-1998 and threatening coercive steps in the case of default. On receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he HUF pursuant to such a notice was not valid. As can be seen from the Genelogy tree that Laxmanrao Sathwane died in 1979 intestate and the property was stated to be his self acquired property. In such circumstances, the case of the appellant is that each co-owner takes the property in his own right as a legal heir of late Laxmanrao Sathwane and the property will never be a HUF property. According to the appellant, therefore, each co-owner has to be assessed individually to capital gains only in respect of the share which they received on transfer of the property. The assessment of the entire sale as by the HUF was not proper. 7. The CIT(A) held that the appellant should file his objections as mentioned in the grounds of appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of appeal, we are in complete agreement with the submission of the learned counsel for the assessee. The definition of 'assessee' contained in section 2(7) of the Income-tax Act, 1961 reads as follows: "2(7) "assessee" means a person by whom any tax or any other sum of money is payable under this Act, and includes - (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provision of this Act; (c) every person who is deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee aggrieved entitled to file an appeal under section 246 of the Income-tax Act, 1961. 1. Benoy Kurian v. AgrL ITO [1998] 234 ITR 617 (Ker.) 2. CIT v. Hindustan Steel Ltd. [1989] 179 ITR 213 (Cal.) 3. CIT v. N. Ch. R. Row & Co. [1983] 144 ITR 557 (Cal.) 4. Kikabhai Abdul AH v. ITAT[1951} 32 ITR 762 (Bom.). In view of the above, we hold that the appellant had locus standito file the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) ought to have decided the appeal on merits rather than dismissing the appeal as misconceived holding the appellant did not have locus standi to file the appeal. The CIT(A) was not correct in observing that the appellant should go before the TRO and state his objections to the demand. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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