9911796707
TMI Blog1981 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... ine. The ITO, however, proceeded to order protective assessment. Appeal filed by the assessee before the AAC was dismissed. The AAC endorsed the findings of the ITO and further observed as follows : "I am afraid, I cannot agree with the contention of the learned counsel. This is supposed to be a case of sub-partnership, which has been constituted to have the business of only holding shares in different firms in the name of Shri Om Parkash. Now, Shri Om Parkash was already a partner in various firms. For creating a sub-partnership, there must be some purpose or commercial expediency. In the instant case, no evidence has been brought on record to show that there was any business necessity for creating a sub-partnership, in respect of the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion whether the firm was a genuine firm or not, on the facts and circumstances of the case, was a question of law which was covered in the question which has been referred to this court for its opinion and the said question having not been gone into in the order of the Bench referred to above, the order of the Bench be recalled and the matter be reheard. Notice of this application was given to the assessee and after hearing both the parties, the Bench, vide order dated April 2, 1981, recalled its earlier order dated February 12, 1981, and thus the reference has been listed for, rehearing. We have reheard the arguments addressed by the learned counsel for the parties and have also gone through the records of the case. On reconsideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the application for a sub-partnership's application for registration as firm. The Tribunal, after making the above-mentioned observations, nowhere recorded a finding that the firm was genuine. In other words, even though the Tribunal disagreed with the reasons given by the ITO and the AAC for coming to the conclusion that the firm was not proved to be genuine, it did not record any finding that the firm was genuine. On the other hand, in para. 7 of the order, the Tribunal itself observed that in the instant case a close perusal of the recital and clause 4 of the instrument suggests that in the sub-partnership in question there is no element of agency and thus it is no better than an association of persons and thus there should have ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to do so on the plea that the assessee had already been assessed as registered firm. As regards the assessment made by the ITO of the assessee firm, it may be observed that the assessment was made merely as a protective assessment. Since the assessee had a right to appeal against the order of the ITO, therefore, the ITO had to make a protective assessment so as to watch the interest of the Revenue. The learned Tribunal filed to take notice of this fact that the assessment made against the assessee was a protective assessment and thus no adverse inference could be drawn in this regard against the Revenue. The powers of the Tribunal to pronounce upon the matter in issue are very wide. If on the material on record more than one argument is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference is made to the High Court, the decision of the Appellate Tribunal cannot be looked upon as final. In other words, the appeal is not finally disposed of. It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides it, that the appeal is finally disposed of. Reference in this connection may be made to the decision of their Lordships of the Supreme Court in Esthuri Aswathiah v. CIT [1967] 66 ITR 478. In view of what has been stated above, we, therefore, refuse to answer the question referred to us and send the case back to the Tribunal for passing a fresh order, and redecide the, appeal of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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