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TMI Blog2001 (1) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee and remanded the case back to the Income-tax Officer for deciding the case of additions so set aside after affording an opportunity of hearing to the assessee. Aggrieved by that order the assessee preferred an appeal before the Income-tax Appellate Tribunal. The Appellate Tribunal held that the additions made without affording an opportunity of hearing, being in contravention of the specific requirement of the provisions of the statute that before making any addition in the income returned by the assessee, the assessee has, to be given an opportunity of hearing, renders the order void ab initio and nullity which could not be cured and has only to be quashed and could not be made the subject-matter of remand. Therefore, it al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the tribunal has decided the appeal after taking into consideration provisions of law in the light of decisions of the Supreme Court and therefore need not be referred and question No. 3 which was in respect of deletion of the addition of Rs. 11,283 the Tribunal refused to refer the said question on the ground that the finding that the property belongs to the minor son of the assessee and was not held benami was a question of fact and does not give rise to the question of law. We have heard learned counsel for the parties and for the reasons to be stated hereinafter we are of the opinion that the order of the Tribunal rejecting Reference Application No. 126/JDH of 1998 holding that questions Nos. 1 and 2 are not questions of law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 451, wherein the Supreme Court has held that where a claim of partition in the Hindu undivided family is made in time and the assessment is made on the Hindu undivided family without holding an enquiry as contemplated by section 25A(1), the assessment is liable to be set aside in appeal as it is in clear violation of the procedure prescribed for that purpose. The Supreme Court further went on to state that when the Tribunal holds that such an assessment is liable to be set aside, the duty of the Tribunal does not end with making a declaration that the assessment is illegal. The proper order to be passed in such a case would be to set aside the assessment and to direct the Income-tax Officer to make a fresh assessment in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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