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TMI Blog2001 (3) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... een identified by the Assessing Officer nor the notices on such persons have been issued...." Finally, the CIT(A) vide order dated 25-8-1992 held that the Assessing Officer would decide on facts whether the activity was carried on as an AOP or otherwise. The assessment was therefore, set aside to the file of Assessing Officer for fresh adjudication. 3. In pursuance of the aforesaid order, fresh enquiries were made by the Assessing Officer who ultimately determined that the income was earned by the two ladies viz. Smt. Sumanbai Waman Chaudhary and Smt. Sushilabai V. Wagh. Thereafter, without issuing any fresh notice of reassessment, he completed the assessment in the names of the aforesaid two ladies in the status of 'AOP' vide order dated 31-3-1995. Again, the validity of the reassessment proceedings was challenged by the assessee before the CIT(A) who has mentioned in his order that such ground, though taken in the grounds of appeal, was not pressed. However, on merits, the appeal was partly allowed. Aggrieved by the same, the assessee preferred the appeal before the Tribunal. 4. The Tribunal vide order dated 5th June, 2000 held that the ground regarding validity of reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, it was found that the word "others" was redundant and had to be deleted from the assessment order. According to him, the word "others" used in the notice and the assessment order was only a technical defect within the perview of section 292B. In this connection, he had referred to the reasons recorded by the Assessing Officer copy of which was filed for the first time in the proceedings under section 254(2). According to him, the ITO had clearly mentioned that the income had been earned jointly in the business of purchase and sale of plots only by these two ladies. Therefore, the word "others" used by the Assessing Officer was only a mistake or defect which could not render the notice as invalid one. He also referred to the Circular No. 179 dated 30-9-1975. He invited our attention to para 47 of the said circular to point out that section 292B was introduced to cover such defects in the notices or assessments. In addition, he relied on the following decisions: (1) Swaran Kanta v. CIT[1989] 176 ITR 291 (Punj. Har.) (2) CIT v. R. Giridhar [1984] 145 ITR 246 (Kar.) (3) CITv. Anand Co. [1994] 207 ITR 418 (Cal.) (4) National Insurance Co. Ltd. v. CIT [1995] 213 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also submitted by him that reasons recorded by the Assessing Officer reveals further that approval of the D.C.I.T. had not been obtained before the issue of notice under section 148 as required by section 151(1) as it is stood after amendment w.e.f. 1-4-1989. Since, this requirement of law had not been complied with, the notice was invalid on this account also. This defect goes to the root of the matter and cannot be saved even by the provisions of section 292B. 8. He also drew our attention to the language of section 292B to point out that this section can be applied only if the notice is otherwise in confirmity with or in accordance with intent or purpose of the Act. That means that this section presuppresses the issuance of a valid notice. According to him, this section takes within its ambit only procedural or technical defects in a notice which is otherwise valid. 9. He then referred to the decision of Bombay High Court in the case of Ramsukh Motilal 27 ITR 54 for the proposition that issue of a valid notice under section 148 is not a mere formality but is a condition precedent to the assumption of jurisdiction. He then referred to the decision of Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the impugned notice should not suffer from the infirmity which goes to the root of the matter. Accordingly, we are of the view that a notice which is otherwise not in accordance with the law cannot be saved by recourse to section 292B. 12. It is the settled position of law that issuance of valid notice under section 148 is not the mere formality but is a condition precedent for assumption of jurisdiction under section 147. Therefore, vital defects in the notice which goes to the root of the matter would render such notice invalid and consequently, render the entire proceedings under section 147 as null and void. The Bombay High Court in the case of CIT v. Ramsukh Motilal [1955] 27 ITR 54 had to consider a notice under section 34 of 1922 Act (corresponding to section 148 of 1961 Act) which permitted the assessee to file the return within six days only as against 30 days permitted by law. It was held by the Court that notice was clearly illegal and such illegality could not be waived by the assessee. It was further held that the defect in the notice under section 34 was not a procedural defect but was a failure to comply with a condition precedent to the assumption of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with law, the assessment would be illegal and without jurisdiction. The notice should specify the correct assessment year and should be issued to the particular assessee." "That before assessing an association of persons, the notice should be addressed to the "principal officer" or a "member" thereof as enjoined by section 282(2)(c), which was not done in the instant case and which meant that there was no notice to the association of persons which was assessed to tax. Such a fundamental infirmity could not be called a "technical objection" or a mere irregularity and such a vital infirmity could not be cured or obliterated by reliance on section 292B. Therefore, the Tribunal was in error in holding that section 292B was applicable to the case." 15. In the present case, the notice was issued in the name of "Smt. Sumanbai Waman Chaudhary and Smt. Sushilabai V. Wagh others' without specifying the status of the assessee. A person to whom a notice is issued under section 148 for filing of the return is entitled to know as to whose income is to be returned. Therefore, the 'status' aspect is vital to the issue of valid notice. In this connection, reference can be made t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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