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TMI Blog2017 (1) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... es got dissolved on 01.04.2004 because there were only two partners in the firm and Smt. Aparna Phumra one of the partners has retired from the partnership, so, therefore, in the eyes of law the assessee partnership firm stands dissolved. Therefore, the service of notice itself to an assessee who is no more partnership firm and the assessment framed thereafter is null in the eyes of law. So, in the peculiar circumstance of the case, on both these counts aforestated the order impugned is void in the eyes of law. Since the re-opening u/s 147/48 itself stands quashed, the penalty also does not survive and so is also quashed. - Decided in favour of assessee. - I.T.A No. 2551 & 2552/Kol/2013 - - - Dated:- 31-1-2017 - SRI ABY T. VARKEY AND WAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of appeal which are as follows: (5). That the Ld. AO erred in initiating proceedings in the name of B.K. Agencies which having been dissolved on 1st of April, 2004 had no existence on date of issuance of notice u/s 148 of the Income Tax Act, 1961. (6). That in any case, impugned notice having been not served in the name of the partner of B.K. Agencies, the impugned notice cannot be treated to have been validly served, making the impugned proceedings bad in law. (7). That in any case, the impugned notice having validly not served on partner of the firm, whose address was on record of the Department, there was denial of opportunity of hearing to the partner and thus violation of the principles of natural justice. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-04, preferred an appeal before the Ld. CIT(A), who was pleased to dismiss the same. Aggrieved by the aforesaid order of the Ld. CIT(A) Smt. Aparna Phumra is before us. 4. We have heard both the parties and perused the records carefully. We note that the assessee M/s B.K. Agencies is a partnership firm, whose assessment was completed u/s 143(3) and an original assessment order was passed determining the total income at ₹ 2,09,320/-. Later on assessment was re-opened because the AO found that there was difference in the valuation of the closing stock to the tune of ₹ 31,10,660/- from the books of the assessee and that which the firm had furnished before the bank for availing loan facility. On the basis of this reason the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as the probono counsel let us knew that Smt. Aparna Phumra was the partner along with her husband Sri Basant Phumra, who was managing partner of the firm M/s. B.K. Agencies in the A.Y.- 2003-04 and due to marital dispute between Smt. Aparna Phumra and Shri Basant Phumra, she retired from the assessee firm of M/s B.K. Agencies on 1st April, 2004 and because of her retiring from the firm by operation of law the firm M/s. B.K. Agencies was dissolved in the eyes of law because the Partnership Act stipulates minimum two persons to form a firm and when she retired the sole member of the Firm was her husband only and so in the eyes of law the assessee firm stands dissolved on 1st April, 2004. The Ld. Counsel took our attention to Page 1-6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has refused to accept the notice then only recourse can be made to notice by affixture. It should be remembered that in the case of affixture by notice by the department it is duty bound to give the details as to when the notices were sent by ordinary, registered/acknowledgement post and the fact that the assessee refused to accept the notice and then only recourse to notice by other means can be resorted i.e. in this case notice by affixture. Even in the case of affixture by notice the signature of the notice server as well as the signature of the person who is staying nearby the place of the assessee and who identified the address of the assessee needs to be taken by the department for successfully completing the notice by affixture. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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