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TMI Blog2017 (3) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... s individual status. Sec. 292BB of the Act can cure only were a notice is claimed by a assessee not to have been served on him or served on him out of time or served in an improper manner. It cannot cure a situation were there was no issue of notices u/s.148 or u/s.143(2) of the Act. As for the contention of the ld. Departmental Representative that such a ground was not raised by the assessee before ld. Assessing Officer, it being a pure question of low with all relevant facts on record, it is of the opinion that Tribunal can consider it, though raised first time before it. Therefore have no hesitation to set aside the assessment done on assessee on impugned assessment year. - Decided in favour of assessee - I.T.A. No. 1667/Mds/2016 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pieces of land to five persons including the assessee Shri. Deen Dayal Kothari. As per Smt. K. Sathya the details of the property sold were as under:- Sl.No Land Area Sales Price Amount 1 S.No.146/4A, Nemili Village, Sriperumpudur 2.89 acres C60,04,000/- (Cheque No.5,04,000/- + Cash C55,00,000/-) 2 S.No.146/4B, Nemili Village, Sriperumpudur 4.03 acres C83,72,325/- (Cheque No.7,02,800/- + Cash C76,69,525/-) 4. Thereafter on 04.02.2013, assessee appeared before ld. Assessing Officer and a sworn statement was recorded. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. Total amount not disclosed by the assessee was computed by the Assessing Officer as under:- Actual purchase price 60,04,000 (1/5th share of assessee) C12,00,800 But offered by assessee in his return (C12,60,040 X 1/5) C2,52,000 Balance 9,48,800 Add Stamp duty (100808 X 1/5) 20,162 Total amount not disclosed by Assessee 9,68,962/- Actual purchase price 83,72,325 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof by issuing summons to Smt. K. Sathya who had accepted receipt of on-money. He confirmed the additions made by the ld Assessing Officer. 6. Now before me, ld. Authorised Representative submitted that the assessment was bad in law since it was initiated on a return filed by the assessee in HUF status. As per ld. Authorised Representative Assessing Officer if he found that the property was purchased in the individual status of the assessee, ought have issued notice u/s.148 of the Act to the assessee in his individual status. This was never done. Notice was admittedly issued in the status of HUF. Assessment having being done u/s.143(3) r.w.s. 147 of the Act, as per ld. Authorised Representative notice issue of notice u/s.148 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. On examination of the Return of Income filed by the assessee Shri. Deen Dayal Kothari for the AY 2008-09 in HUF status, it is seen that the investment in the above property has not been disclosed. So, the undersigned has reason to believe that there is an escapement of income and the assessment was reopened. Notice u/s. 148 was issued on 07.07.2011. The assessee had written a letter stating that the return already filed may be treated as the return filed in response to the notice u/s.148 . The properties purchased by the assessee as per ld. Assessing Officer, was not disclosed in the return filed by the assessee in HUF status. It was only when assessee was examined by the ld. Assessing Officer on 04.02.2013, the ld. Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded only in the status of HUF and not as an individual, ld. Authorised Representative has relied on the Third Member decision in the case of Suraj Mal, HUF(supra). In the said case, the original return was filed in the status of individual but final assessment was completed in the status of HUF. What was held by the Bench at para 16 of the order is very relevant, and this is reproduced hereunder:- 16. In the case of AAC vs. Late B. Appaiah Naidu 1974 CTR (SC) 147: (1972) 84 ITR 259(SC), their Lordships held as under : Now coming to the second question as noticed earlier, the assessment was made in respect of the income of Appaiah Naidu on his legal representative, his son Sriramamurthy, in the status of an individual and not as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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