9911796707
TMI Blog1990 (3) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... above finding of the ITO before the CIT(A) who instead of determining as to whether or not the real owner of the income in question was the assessee or Late S.N. Sahu, dismissed the assessee's grievance against the ITO's finding that the assessee was a benami of Late S.N. Sahu and that assessment was, therefore, being made protectively in his hands, by observing inter alia, as follows: "...since the appellant had filed the return and assessment had been framed, the appellant's rights are nowhere affected by the observations of a protective assessment..." The assessee is aggrieved of the aforesaid finding of the learned CIT(A) and it is urged on its behalf by the learned counsel for the assessee that whereas there is provision in law f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal either by the assessee who is substantially assessed. The course of action adopted by the learned CIT(A) was prima facie against law and, therefore, his order deserves to be set aside and so we set it aside. 7. We, however, do not agree with the contention of the assessee that the matter should go to the ITO. The ITO has already expressed his opinion about the protective nature of this assessment and, therefore, no useful purpose would be served by restoring this issue to him. He, was, in law entitled to express his opinion as above. Therefore, it would not be correct to restore the matter back to him. The matter deserves to go back to the learned CIT(A) because it is he who did not do what he should have done. We, therefore, restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. In our opinion, there is merit in the assessee's contention. The Tribunal had already granted registration to the assessee firm vide its order in ITA No. 2355/Alld/1984, for the asst. yr. 1981-82, and vide its order in ITA Nos. 1797, 1798 and 2078 (Alld)/1983, dt. 22nd Feb., 1983 dt. 22nd Feb., 1983 for the asst. yrs. 1978-79 and 1979-80. Therefore, the registration of the assessee firm had automatic continuation during the accounting period under consideration, there being no case of the Department that either there was a change in the constitution of the firm in the accounting period or that the Form No. 12 was filed late. This registration could have been cancelled by the Revenue only after having recourse to the procedure laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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