9911796707
TMI Blog2004 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the Commissioner of Income-tax did not have the jurisdiction to direct modification of the order passed by the Income-tax Officer under section 158 and the order passed by him cannot be sustained by relying on section 292B. As a corollary to this, we hold that the Tribunal did not commit any illegality by setting aside his order. - - - - - Dated:- 30-11-2004 - Judge(s) : G. S. SINGHVI., M. M. AGGARWAL. JUDGMENT The judgment of the court was delivered by G.S. Singhvi J.- In compliance with the direction issued by this court I.T.C. No. 60 of 1985, the Income-tax Appellate Tribunal, Chandigarh Bench (for short, the Tribunal), has referred the following question of law for the opinion of this court: "Whether the Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring an income of Rs. 1,49,574. The distribution of income shown among the partners was as under: ----------------------------------------------------------------------- Sl. Percentage Business Share of No. Name of partner of profit income Interest business income ----------------------------------------------------------------------- (i) Sh. M. B. Lal HUF 20% 22.603 2,766 25,369 (ii) Sh. Deepak Mittal 20% 22,602 2,586 25,185 (iii) Sh. Anil Mittal 20% 22,602 5,904 28,506 (iv) Neeru Mittal Family 20% 22,602 75 22,677 Trust (v) Nirdosh Mittal Family 20% 22,602 50 22,65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 22, 1984. The Tribunal noted that the Commissioner of Income-tax had proposed cancellation of the registration granted to the firm on the ground of violation of the conditions of the partnership deed in the matter of allocation of shares among the partners, but ultimately did not cancel the registration and held that the Commissioner of Income-tax could not have directed the Income-tax Officer to change the share allocation among the partners without issuing notice under section 158 read with section 67 of the Act. Shri Rajesh Bindal, learned counsel for the Revenue, fairly stated that the notice issued by the Commissioner of Income-tax was confined to the proposed cancellation of registration on the ground of incorrect allocation of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether the orders passed under various sections. To illustrate, if there is a dispute about the previous year of the assessee, it is to be determined keeping in view the provisions of section 3 of the Income-tax Act. Again dispute about the status has also to be specifically dealt with. Firm is a status. There may be dispute whether the assessee is a firm or an association of persons or body of individuals. This has to be specifically determined. Not only this, the firm has been given certain concessions in the matter of taxation. For that purpose, it has to get itself registered with the Income-tax Department under section 185(1)(a) of the Income-tax Act after making an application under section 184. If the Income-tax Officer finds that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order of the Income-tax Officer passed under section 185(1)(a) as not erroneous, the cause of action by him came to an end there. We have already pointed out above that the order under section 158 is altogether a separate order from the order passed under section 185(1)(a). The Commissioner of Income-tax did not assume jurisdiction nor did he issue any show-cause notice before modifying the order passed under section 158 read with section 187(1), proviso, and section 67 of the Income-tax Act. He has also not mentioned in his order as to how this order was erroneous inasmuch as it did not affect the tax liability of the firm. We are not inclined to agree with the learned Departmental Representative that section 292B will cure the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." A reading of the above reproduced provision makes it clear that a mistake, defect or omission in the return of income, assessment, notice, summons or other proceeding is not sufficient to invalidate an action taken by the competent authority, provided that such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the provisions of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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