9911796707
TMI Blog1997 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... Feb., 1997, served on the said Benjamin Dominic was subsequently intimated to him. It is also stated that the petitioner came to know of the assessment order and the attachment effected on the property only on 21st June, 1997, from Mr. Benjamin Dominic. It is further stated that the petitioner had filed appeals against Ext. P-2 assessment order for the years 1992-93 and 1993-94 before the third respondent on 25th June, 1997, evidenced by Exts. P-4 and P-5. It is stated that in order to entertain the appeals the prescribed fee had to be paid and for that purpose challans have to be issued by the second respondent and, therefore, the petitioner made a request to the said authority for issue of challans to pay the appeal fees. It is further stated that a cheque was also tendered towards appeal fees along with Ext. P-6 application. The second respondent issued Ext. P-7 communication stating that since the petitioner is not an assessee of that office his request for challan along with the cheques are not entertainable and the same was returned. In the covering letter forwarding the appeals to the third respondent the petitioner had stated that he is not in a position to submit the chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel also submitted that the provisions regarding appeals have to be construed very liberally as laid down by the Supreme Court and construing the provisions of s. 72 of the Act along with r. 76 of the Rules it has to be held that any person aggrieved by an order passed by the Agrl. ITO can file appeal against the said order as provided therein and, therefore, the second respondent was not justified in saying that he will not issue challan for payment of the appeal fee and further the third respondent appellate authority was not justified in refusing to entertain the appeal especially when the petitioner had enclosed cheque for the fees prescribed under the Act along with the appeal memorandum. Learned counsel also relied on a decision of the Calcutta High Court in CIT vs. N.Ch.R. Row Co. (1983) 32 CTR (Cal) 73 : (1983) 144 ITR 557 (Cal) and submitted that the petitioner is entitled to the reliefs sought for in the original petition. I have also heard the learned Government pleader appearing for the respondent. He submitted that under the provisions of s. 72 of the Act only an assessee aggrieved by an order passed by the Agrl. ITO can file appeal and that the petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransferee shall each be assessed in respect of his actual share of such agricultural income and when the transferor cannot be found, the assessment of such agricultural income of the previous year in which the transfer took place upto the date of the transfer and for the years proceeding that year shall be made on the transferee in like manner and to the same amount, as it would have been made on the transferor. Similarly, when the tax in respect of the assessment made before or after the transfer for any or all of such year assessed on the transferor cannot be recovered from him, it shall be payable by and recoverable from the transferee subject to the right of the transferee to recover from the transferor the amount of any tax so paid. So, by virtue of the provisions of s. 57 of the Act, a transferee can be made liable for payment of agricultural income-tax due from the transferor-defaulter in respect of the tax due in relation to the property transferred if the circumstances stated therein are satisfied. As already stated, the assessee means a person by whom any tax or any other sum of money is payable under this Act. A person who is made liable to pay tax under s. 57 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee-firm registered under the IT Act was carrying on business at Calcutta. The partners of the firm as per the partnership deed were N.Ch.R. Rao. and P. Jagannathan. The return of the firm for the asst. yr. 1963-64 was filed in December, 1963, by N.Ch.R. Rao as a partner. In the said return N.Ch.R. Rao and P. Jagannathan were shown as the two partners of the assessee-firm. The application for registration was also signed by the said two persons. The assessment was completed by the ITO and by an order passed under s. 158 of the Act, the ITO allocated the assessed income in equal shares between the said two partners. The total income assessed included a sum of Rs. 50,000 added as income from undisclosed source for which deduction was claimed by the assessee but disallowed by the ITO. The said addition was challenged in appeal by the firm. The same was sustained by the AAC. Aggrieved by the order of the AAC, P. Jagannathan as partner of the assessee-firm filed appeal before the Tribunal. During the pendency of the appeal both the partners died. Their legal representatives did not respond to the notices issued to them and one P. Bhaskara Rao claiming to be a partner of the assessee-fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person who feels disappointed with the result of the case is not a 'person aggrieved'. He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something." The Calcutta High Court after referring to the said observations held that the assessment order caused Bhaskara Rao a legal grievance by imposing a tax which, according to him, was not lawfully payable. The Calcutta High Court also relied on a decision of the Bombay High Court in Kikabhai Abdulali vs. ITAT [1957] 32 ITR 762 (Bom) : TC 8R.188 which held that the right to appeal to the Tribunal from an order passed by the AAC was not confined technically to the party who was a party to the appeal but was a much wider right which might be exercised by any person who was liable to pay tax by any order against which the appeal was preferred. Again the question regarding the right of appeal in the context of s. 246 of the IT Act came up before a Division Bench of the Calcutta High Court in CIT vs. Hindusthan Steel Ltd. [1990] 82 CTR (Cal) 191 : [1989] 179 ITR 213 (Cal) : TC 6R.121. That was a case where on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder s. 246 any person who really is aggrieved by the assessment order and on whom the burden of tax will fall will be entitled to prefer an appeal so that the tax burden can be entirely reduced or lessened and that a person who will not have to bear the burden of tax will never appeal. The Calcutta High Court also relied on its earlier decision in CIT vs. N.Ch.R. Raw Co. . Apart from all the above, in the instant case, though s. 72 of the Act refers to 'assessee aggrieved', r. 76 refers to 'person aggrieved'. On harmonious reading of the provisions of s. 72 and r. 76 particularly in the context that it deals with the right to file appeal it has to be held that any person aggrieved by an order passed by the Agrl. ITO can file an appeal to the AAC. What is required to be established is that the person is aggrieved by the order passed by the Agrl. ITO. In the instant case, the fact that the property belonging to the petitioner is proceeded against for recovery of the amount due as per Ext. P-2 assessment order and the further fact that the transferor-assessee had not filed any appeal against the said orders, are sufficient to hold that the petitioner is a person aggrieved by Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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