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TMI Blog2014 (7) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... nt time – the matter is remitted back to the Tribunal – Decided in favour of Revenue. Whether the Tribunal is right in confirming the order passed by the CIT(A) directing the AO to make two assessments for the two periods – Held that:- Mere change in the constitution of the firm within the meaning of section 187 was not correct and it must be held that this is a case of succession within the meaning of section 188 and the case did not fall under the provisions of section 187 of the Act - Following the decision in Commissioner of Income-Tax Versus Amritlal Nihalchand [992 (1) TMI 6 - SUPREME Court] - there was succession of the firm and is held against the revenue – Decided against Revenue. - Income Tax Reference No. 29 of 2000 - - - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to make two assessments for two periods? R.A.No.250/AHD/1997 Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income Tax (Appeals) directing the Assessing Officer to make two assessments for the two periods observing that there was succession of the firm? 2. The facts in R.A. No.248/AHD/1997 are that before the Inspecting Assistant Commissioner (Assessment) who was the Assessing Officer, the assessee claimed for allowance of depreciation on the basis of revalued cost of assets as per the dissolution deed. According to the assessee, it had revalued its assets upward by ₹ 25 lacs out of which ₹ 22 lacs were taken to the reserve account for meeting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the aforesaid periods observing that there was succession of the firm. 2.5. The Tribunal confirmed the order passed by the CIT(A). 2.6. The facts in R.A.No.250/AHD/1997 are that the assessee had filed two returns of income, one on 30.6.1991 declaring income at ₹ 19,110/- for the period upto 31.12.1979 and another showing loss of ₹ 2,88,610/- for the period from 1.1.1980 to 7.11.1980. The Assessing Officer determined the total income for the first period at ₹ 33,050/and at ₹ 35,490/- for the second period, by way of single assessment. The A.O levied penalty under Section 273(2)(a) of the Act. 2.7. The CIT(A) directed the AO to revise the calculation of penalty on the basis of two assessments to be made as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Tribunal to consider the aforesaid issue/ question afresh and on merits. 4. Now, so far as question referred to this Court arising out of the R.A. No.250/AHD/1997 i.e. Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income Tax (Appeals) directing the Assessing Officer to make two assessments for the two periods observing that there was succession of the firm is concerned, Shri Desai, learned advocate for the Revenue has fairly conceded that the aforesaid issue is squarely covered against the revenue in view of the decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Amritlal Nihalchand reported (1992) 196 ITR 346. Therefore, it is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down the value on merits and had held against the revenue solely on the ground that the AO had not obtained approval of the Deputy Commissioner before applying Explanation 3 of Section 43(1) of the Act. As observed herein above, the learned Tribunal has not properly appreciated and considered the relevant provision of Section 43(1), more particularly, explanation 3 of Section 43(1) which was prevailing at the relevant time referred to herein above. Under the circumstances, question no.2 pursuant to the order passed in RA No.248/AHD/1989 referred to herein above is held in favour of the revenue and against the assessee and the matter is required to be remitted to the learned Tribunal to consider the question no.1 and 3 of RA. 248/AHD/1989 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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