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TMI Blog1984 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances of the case, the Tribunal has erred in not quashing the notice under s. 148 on the ground of limitation ? " The facts of the case as per the statement of the case submitted by the Tribunal may be stated thus: A deed of partnership was executed on June 23, 1961, in the name of M/s. Pagoda Hotel Restaurant, in which Shri Ramlal Sethi, Vikramjit Sethi, Inderjit Sethi were equal partners with equal shares. The said partnership was made effective from June 16, 1961. This firm had two activities, of which one was of running hotel and restaurant known as Pagoda Hotel Restaurant and the second was running of wine shop in the name of " M/s. Sethi Wine Stores ", Hamidia Road, Bhopal, dealing in foreign liquor. M/s. Sethi Wine S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner, the Tribunal made a reference to this court under s. 66(1) of the Indian I.T. Act, 1922, which was as under : " Whether, on the facts and in the circumstances of the case, the assessee-firm was an illegal firm not entitled to registration ? This court answered the question as under : " That the partnership so far as it relates to the wine shop is illegal and cannot be registered, but so far as it relates to the hotel business, it is a valid partnership and is entitled to be registered under the Income-tax Act." This decision is reported in CIT v. Pagoda Hotel Restaurant [1974] 93 ITR 271 (MP). The ITO, accordingly, passed a consequential order and assessed M/s. Pagoda Hotel Restaurant in respect of its hotel i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in the name of one of the partners and the assessee was not entitled to transfer or sub-lease the licence, though it is not in dispute that the partners of M/s. Pagoda Hotel Restaurant were also the partners of M/s. Sethi Wine Stores which firm came into existence on March 1, 1965. The matter again went up before the Tribunal for the assessment years 1962-63 to 1965-66, which by its order dated December 20, 1982, came to the conclusion that the earlier decision of the Tribunal in respect of M/s. Sethi Wine Stores related to the assessment year 1966-67 only and could not apply to the facts of the assessee of M/s. Sethi Wine Stores for the earlier years during which the wine business was carried on as a branch of M/s. Pagoda Hotel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urns. He, therefore, submitted that there was no omission of any nature on the part of the assessee to enable the ITO to take action under s. 148 of the I.T. Act. He, therefore, submitted that as the earlier assessment was already made as AOP, the same could not be reassessed by issuing a notice under s. 147 (a) of the I.T. Act, as has been done in this case, and in support of his submission, he placed reliance on the decisions in Narayanappa Setty Co. v. CIT [1975] 100 ITR 17 (AP), ITO v. Chandi Prasad Modi [1979] 119 ITR 340 (Cal), Addl. CIT v. Automobile Association of Southern India [1981] 127 ITR 730 (Mad), CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC), Sewlal Daga v. CIT [1965] 55 ITR 406 (Ctl), CIT v. Rao Thak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm could not be considered to be return submitted by an association of persons. Section 4 of the Act provides that income-tax shall be charged in respect of the total income of the previous year or years in respect of every person. Therefore, in the return submitted by M/s. Pagoda Hotel Restaurant, the names of the persons who carried on the business in the name of M/s. Sethi Wine Stores as department of the said concern were shown, it having been found by this court that the same has to be bifurcated and it is only the income of M/s. Pagoda Hotel Restaurant which can be taken into consideration as a partnership firm of which registration could be granted under the I.T. Act. Therefore, it is clear that though M/s. Sethi Wine Stores by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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