9911796707
TMI Blog2006 (1) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of absence of tax-working, etc., in ITNS 150, assessment be quashed." 2. Brief facts are-assessee is a non-resident staying in USA since 1965 and assessed in India under income-tax and wealth-tax in the status as non-resident. Assessee's brother Shri Vijay S. Patel (for short "VSP") is holder of Power of Attorney (for short "POA") from assessee and is looking alter taxation, properly and other matters. While finalizing assessee's assessment for assessment year 1994-95, Assessing Officer was of view that interest income has escaped assessment in respect of assessment years 1986-87, 1987-88 and 1988-89, notices under section 148 were issued and assessee filed returns of income in response thereto. Reassessment proceedings were tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in this behalf, and, therefore, provisions of section 149(3) prescribing limitation of two years from end of assessment year for the purpose of reassessment cannot be held applicable, therefore, notices under section 148 were validly issued. Assessee further took a plea that no tax calculation along with assessment order was provided either in Form No. ITNS 150 or in Demand Notice, therefore, assessment orders were invalid. Reliance was placed on judgment in the case of Kalyankumar Ray v. CIT [1991] 191 ITR 634 (SC). CIT(A) distinguished facts and circumstances of these judgments and held that assessment was valid. Aggrieved assessee is before us. 3. Learned counsel for the assessee drew our attention to copies of notices under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representative assessee' means- (i) in respect of the income of a non-resident specified in sub-section (1) of section 9, the agent of the non-resident, including a person who is treated as an agent under section 163. 161(1) Every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same dues, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income; but any such assessment shall be deemed to be made upon him in this representative capacity only, and the tax shall, subject to the other provisions contained in this Chapter, be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and being a representative assessee, mere service of notice cannot make him an agent under section 163. Attention was drawn to pager-book page No. 7, which is a letter for assessment proceedings dated 28-12-1998, Assessing Officer has addressed assessee as under: "To Mr. Pankajbhai S. Patel through Shri Vijay S. Patel Power of Attorney holder" 5. It was further contended that 148 notices referred to are only in the name of Pankajbhai S. Patel, i.e., assessee, there is no mention of VSP, merely they have been served on him, which is in accordance with section 282. In fine, it was vehemently argued by learned DR that there was no written order under section 163, treating VSP as an agent, who was a power of attorney holder and on his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be power of attorney holder or because of any other cognizable relationship with the assessee in respect of income specified in section 9(1), whereas in the case of an agent under section 163, a written order in this behalf is necessary to be passed by Assessing Officer after giving opportunity of being heard. It is emphasized that such order passed by Assessing Officer is appealable one under section 246, admittedly, no such order has been passed in assessee's case. Under these circumstances, we are of the view that in the absence of any notice as prescribed under section 163 and any order thereon by Assessing Officer, assessee cannot be treated as agent under section 163(1)(c) so as to be eligible for shorter time-limit for notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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