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TMI Blog1976 (4) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Whether, on the facts and in the circumstances of the present case, the income derived from Seconee Tea Estate for the calendar year 1962 can in law be said to accrue to the purchaser and is assessable during the assessment year 1963-64 ?" The assessee-petitioner is M/s. Saharaj Tea Company. The facts of the case are briefly stated below : The relevant assessment year is 1963-64. The Income-tax Officer while assessing the petitioner, M/s. Saharaj Tea Company, observed that the company filed several returns and the last revised return was filed on May 26, 1965. After hearing the assessee, the Income-tax Officer completed the assessment under section 143(3) of the Act as a protective measure in the status of the firm. The Income-tax Officer in the assessment order relating to M/s. Saharaj Tea Company has pointed out that the assessee is the owner of the Seconee Tea Estate. The agreement of sale was made on March 31, 1962, for purchase of Seconee Tea Estate from M/s. Koliabor and Seconee Tea Company by Al Haj J. Ahmed and M. A. Rahman and it was stipulated that the deed of conveyance in respect of the Seconee Tea Estate would be executed in favour of the purchaser, J. Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appeals before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner cancelled the assessment relating to Messrs. Saharaj Tea Company. While dealing with the appeal of J. Ahmed, the Appellate Assistant Commissioner held that he was not the owner of the tea estate during the calendar year 1962. The Appellate Assistant Commissioner further held that it could not be said that the purchaser was in possession of the tea estate or carried on the business of the tea estate during the calendar year 1962. The Appellate Assistant Commissioner also held that the income of the Seconee Tea Estate during the calendar year 1962 was not the income of J. Ahmed, since he was not the owner of the tea estate nor did he carry on the business of the said tea estate during the calendar year 1962. He, accordingly, deleted the amount of Rs. 3,23,886 from the assessment of J. Ahmed. Thereafter, the department filed two appeals against the aforesaid orders of the Appellate Assistant Commissioner before the Income-tax Appellate Tribunal. The Tribunal discussed the facts of the case in its common order and has observed that the sale deed and the deed of agreement clearly showed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1962. The Tribunal further held that although the Income-tax Officer made the protective assessment on a different ground, the Appellate Assistant Commissioner could have supported the assessment if he had come to a finding that the business was carried on by the assessee-firm in the calendar year 1962. Having so found, the Tribunal hold that the order of the Appellate Assistant Commissioner in the case of Messrs. Saharaj Tea Company was liable to be set aside. The Tribunal in its order further observed that the Appellate Assistant Commissioner should have given a finding whether the assessee could be registered as a firm for the assessment year 1963-64 or whether it was to be treated as an unregistered firm. The Tribunal, after considering the facts and circumstances of the case, has further observed that in the present case it had to be considered whether the sale deed was in fact in favour of the firm, whether the firm was in existence in the calendar year 1962 and whether the firm could be said to have carried on the business in the calendar year 1962. After discussing the materials on record, the Tribunal has held that the Appellate Assistant Commissioner while disposing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea Estate during the calendar year 1962 (relevant assessment year 1963-64). In its common order, the Tribunal has observed that the Appellate Assistant Commissioner was not justified in cancelling the assessment only on the ground that the protective assessment was not justified, that the Appellate Assistant Commissioner was bound to decide as to whether the assessee was to be treated as a registered firm or as an unregistered firm during the assessment year 1963-64, that the Appellate Assistant Commissioner has considered the circumstances regarding the shares of profits and losses of the partners of the firm as shown in the return filed by M/s. Saharaj Tea Company and even if the partnership deed dated February 14, 1962, was not accepted as ante-dated still whether the firm, M/s. Saharaj Tea Company, was in existence in the calendar year 1962, should have been ascertained inasmuch as the documents mentioned in the order clearly showed that the assessee, M/s. Saharaj Tea Company, throughout asserted that it was in existence as a firm in the calendar year 1962, that in the present case it was necessary to consider whether the sale deed was in fact in favour of the firm, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner by the appellant. " " 254. Orders of Appellate Tribunal.--(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Income-tax Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of any orders passed under this section to the assessee and to the Commissioner. (4) Save as provided in section 256, orders passed by the Appellate Tribunal on appeal shall be final." Considering the above provisions of law and the findings a ..... 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