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TMI Blog1996 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... Court at Calcutta, in an income-tax reference. The questions that the High Court was called upon to answer were : " 1. Whether, on the facts and in the circumstances of the case, there was a valid assessment on a Hindu undivided family for the assessment year 1955-56 ? 2. If the answer to question No. 1 is in the affirmative, then, whether, on the facts and in the circumstances of the case, the assessments for 1958-59 to 1962-63 in the status of a Hindu undivided family are valid ? " The reference related to the assessment years 1958-59 to 1962-63, the relevant previous years whereof were B. S. years 1364 to 1368. The assessee was Rash Behari Das Burman, who was governed by the Mitakshara school of Hindu law. It is unnecessary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Hindu undivided family under section 22 of the Indian Income-tax Act, 1922. Similarly, for the assessment year 1962-63, no notice was issued to the Hindu undivided family under section 139 of the Income-tax Act, 1961. The income from the properties which were covered by the partition suit was returned by and assessed in the hands of the erstwhile members of the Hindu undivided family. The Income-tax Officer, thereafter, took proceedings under section 147(a) of the Income-tax Act, 1961, and concluded that the assessee's Hindu undivided family had escaped assessment ; this was on the basis that no genuine partition had taken place and that the assessee had made a return which misrepresented the facts. The Income-tax Officer started ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand thereunder, it had not been served on the assessee ; (iii) if there was no assessment on the Hindu undivided family (for 1955-56), there was no need on the part of the assessee to come forward with an application under section 25A as that section contemplated an application being made thereunder only when there was already an assessment on the Hindu undivided family ; (iv) the absence of an application under section 25A could not, under these circumstances, give the income-tax authorities any jurisdiction to proceed against the family as such ; (v) section 25A(3) had no operation because there was no assessment on the family, the disputed Hindu undivided family being in the same position as a dead assessee whose income until sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee on widely separated dates". The "records" which the High Court referred to was a statement of "facts which are admitted and/or found by the Tribunal and which are necessary for drawing up a statement of the case (vide paragraph 3 of the reference application)" which was annexed to the Revenue's reference application. This statement said, "Records show this Phool Singh to have received a number of notices on behalf of the assessee on widely separated dates". The statement of the case does not say this about Phool Singh. It is the Tribunal that finds facts. It sets these out in the statement of the case whereby it refers questions of law to the High Court. The High Court, in reference proceedings, cannot go behind the facts found. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of a notice of demand in the prescribed form specifying the sum payable by the assessee could not arise". The High Court did not give due importance to the fact that upon the record produced by the Revenue before the Tribunal there was no signed assessment order nor a signed assessment form. That an assessment order has to be signed is established by the judgment of this court in Kalyankumar Ray v. CIT [1991] 191 ITR 634. It said (page 638) : " If, therefore, the Income-tax Officer first draws up an order assessing the total income and indicating the adjustments to be made, directs the office to compute the tax payable on that basis and then approves of it, either immediately or some time later, no fault can be found with the process, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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