9911796707
TMI Blog1993 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... the status of the assessee was that of a Hindu undivided family originally and after the demise of the late Shri Sumer Singh, that status should be allowed to continue. The Income-tax Officer came to the conclusion that the assessee was assessed all through as an individual and no probate was taken till June 30, 1971, the accounting year for which the assessment was made and, therefore, he came to the conclusion that the income accrued or arisen belonged to the assessee in his individual capacity. The Income-tax Officer held that the law of primogeniture is applicable and it was an impartible estate by custom as well as by law in the context of corpus and income. The Income-tax Officer while assessing in the year 1972-73 also found that right from 1950-51 assessment years, i.e., from the inception of income-tax law in Rajasthan and 1957-58, i.e., the inception of the Wealth-tax Act, the assessee, namely, the late His Highness, had been assessed as an individual. Shri Brijraj Singh, after the death of his father, being the eldest son, as per rule of primogeniture, stepped into the shoes of the late His Highness, Shri Sumer Singh. He was recognised as Ruler of the former Kishangarh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given a finding that opportunity too was given to the assessee by the Income-tax Officer for deciding the status and even written arguments were submitted before the Income-tax Officer. The Appellate Assistant Commissioner came to the conclusion that section 27(ii) of the Income-tax Act has provided that the holder of an impartible estate shall be deemed to be the individual owner of all the properties comprised in the estate. Accordingly, it was held that for the purpose of income-tax, the status has to be taken as that of an individual. The appeal for the assessment year 1971-72 was accordingly dismissed. In respect of the appeals for the assessment years 1972-73 to 1974-75, an additional ground of appeal was taken that since the returns were filed in the status of Hindu undivided family and remained pending, the present proceedings are barred by limitation. The Appellate Assistant Commissioner has held that in accordance with the provisions of section 246(c) of the Act, an appeal is provided against an order where the assessee disputes the status and, therefore, even if the status is changed in the assessment proceedings, an appeal would lie and, in other words, the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any person who, in the Income-tax Officer's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income-tax Officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed." Sub-section (1) of section 139 casts a duty on every person whose total income exceeds the limit prescribed under this Act to file the returns. This court in Munilal Shivnarain Kothari v. CIT [1984] 149 ITR 567 was seized of the matter where the return was filed in the status of a firm but the assessment was made in a different status as an association of persons. It was observed that the position that emerges after a comparative study of the provisions of the Income-tax Act, 1961, and the Indian Income-tax Act, 1922, and also of the Wealth-tax Act is that in the Income-tax Act, 1961, the Income-tax Officer c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, notice under section 139(2) is not necessary. It was observed that there is no provision in the Income-tax Act or Rules providing that where the Income-tax Officer proposes to make an assessment in a status different from the one in which the return is filed a notice or a fresh notice, as the case may be, under section 139(2) of the Act should be issued. Such a requirement cannot be also inferred from the principles of natural justice. This court has subsequently in the case of CIT v. Suresh Chandra Gupta [1988] 173 ITR 407 has held, relying on the decision of CWT v. Ridhkaran [1972] 84 ITR 705 (Raj), that when the return is filed in a different status then a notice under section 139(2) is necessary. Normally, we would have referred this matter to a larger Bench to resolve the controversy since the judgment given in the case of CIT v. Suresh Chandra Gupta [1988] 173 ITR 407 (Raj) was contrary to the view taken by this court in the case of Munilal Shivnarain Kothari v. CIT [1984] 149 ITR 567 (Raj). In the case of Munilal Shivnarain Kothari [1984] 149 ITR 567 (Raj), the decision in CWT v. Ridhkaran [1972] 84 ITR 705 (Raj) was specifically held not applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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