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TMI Blog2014 (12) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... records a finding with regard to the partition, to say that assessee has not adduced any evidence in this regard and proceed to decide the matter but did not conduct any inquiry as contemplated under sub-section (2) of section 171 inasmuch as no notices to other members of the family were issued nor a detailed inquiry has been conducted – relying upon Kapurchand Shrimal Versus Commissioner of Income-Tax, AP [1981 (8) TMI 2 - SUPREME Court] - the AO has failed to comply with the statutory provision inasmuch as a detailed inquiry as contemplated u/s 171(2) after notice to the family members has not been done – thus, the matter is to be remitted back to the AO for re-consideration – Decided in favour of assessee. - Writ Petition No : 13444 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter afresh, thereafter when again the impugned assessment order was passed the petitioner approached the Commissioner under section 264, the same was also dismissed, therefore, this writ petition. 3. Shri G.N.Purohit, learned Senior Counsel inviting our attention to the judgment of the Supreme Court in the case of Kapurchand Shrimal vs. Commissioner of Income Tax-(1981) 24 CTR (SC) 345 argued that when an application is filed under section 171, the said provision mandates the Assessing Officer to conduct a detailed inquiry into the fact as to whether the partition of the family property has been affected and it is only after conducting a proper inquiry into the matter that the assessment order passed. Shri Purohit pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) 5. A perusal of this provision clearly goes to show that at the time of making an assessment under section 143 or section 144, if it is claimed on behalf of the assessee that the property is a joint family property subject to partial or total partition, the Assessing Officer shall make an inquiry thereto after giving notice of the inquiry to the members of the family. 6. It is clear from the proviso as contemplated under subsection (2) of section 171 that notice was required to be issued to the members of the family before the inquiry is conducted. In the backdrop of the aforesaid requirement of law, if the facts of this case are analyzed, it is seen that in the assessment order Annexure- P/8 dated 28.12.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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