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TMI Blog1991 (7) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... not reflect the real controversy in these appeals. Therefore, in order to bring out the controversy, it will first be necessary to bring into focus the factual backdrop of the case from which-the controversy arises. 3. A Hindu undivided family known as M/s Ved Parkash Deepak Kumar consisting of Ved Parkash, his wife Smt. Nirmal Devi and their minor son Deepak Kumar, was assessed to tax, inter alia, on income from business carried under the name and style of M/s Ved Parkash Deepak Kumar. By an application dated 25-2-1980, a claim was made before the Assessing Officer that partial partition qua the capital of the business above named amounting to Rs. 68,210.31 had taken place on 31-3-1979 and it be recognised under section 171 of the Act. The Assessing Officer after making an enquiry and reaching a judicial satisfaction made an order on 22-4-1980 recognising this partial partition. The HUF was following the financial year as the previous year for its business and other sources of income. 4. For the assessment year 1980-81, the business carried on in the name of M/s Ved Parkash Deepak Kumar became the proprietary business of Ved Parkash as recorded in para 14 of the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n place ". In order to bring to tax income accruing and arising from all the assets divided and transferred amongst the members as a result of partial partition affected on 31-3-1979, proceedings under section 147(a) by issuance of notice under section 148 were initiated on 25-11-1983. The notice under section 148 to Ved Parkash, karta of M/s Ved Parkash Deepak Kumar, was issued. It has been recorded in the impugned assessment order that in response to this notice, "the assessee filed its return of income in the status of HUF (specified) in the name of Shri Ved Parkash, karta of Ved Parkash Sons, Ambala". In the computation of total income, the Assessing Officer not only included income from the business carried on by Ved Parkash in the name of M/s Ved Parkash Deepak Kumar but also brought to tax income that was accruing and arising to other members of the family from assets transferred on account of partial partition w.e.f. 31-3-1979. 7. For the assessment year 1982-83, the Assessing Officer was apparently under the impression that return filed in the name of M/s Ved Parkash Sons was not the return of the HUF called Ved Parkash Deepak Kumar. Therefore, notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese facts the assessment was completed, there was no failure on the part of the assessee, there was no suppression of the income on the part of the assessee". He, therefore, held that the Assessing Officer was not justified to take action under section 147(a). The assessments were, therefore, cancelled. 10. It had been submitted before him that the manner and method in which the Assessing Officer proceeded was not in accordance with law because if the partial partition recognised earlier had to be treated as null and void, the Assessing Officer should have taken action first for cancellation of the same order by invoking various provisions contained in the Act such as suggesting action under section 263 etc. The CIT(A) held that such things were not required to be considered by him because he held that original assessments made in this case will stand. He, therefore, restored the original assessments but cancelled the reassessments made. He did not go into the merits of various other issues like disallowances of various expenses and additions on different accounts. 11. The learned Sr. D.R. contended that the CIT(A) has held that original assessments were made in this case, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was placed on a judgment of the Bombay High Courtin the case of Shri B.B. Poojara [1984] Taxation 75(1) - 34. For this proposition he also relied on the judgment of the Gujarat High Court in the case of Shree Vallabh Glass Works Ltd. v. CIT [1981] 127 ITR 37 and Madhya Pradesh High Court judgment in the case of CIT v. Vrajlal Manilal Co. [1981] 127 ITR 512. 14. In the rejoinder, the learned Departmental Representative submitted that the judgment of the Punjab and Haryana High Court in the case of Hari Ram v. Assistant CED [1975] 101 ITR 539 supported the case of the Revenue and that the judgment of the Andhra Pradesh High Court in the case of G.N. Lakshmi Haryana v. ITO [1989] 175 ITR 593, in fact, supports the Revenue. 15. We have given very careful consideration to the rival submissions and have also very carefully perused the relevant provisions of law along with the authorities cited. It is true that the Hon'ble Madras High Court in the case of M. V. Valliappan has held that section 171(9) suffers from invalidity on the ground of discrimination and arbitrariness and hence has to be declared as void and that it is void also on the ground of violation of Article 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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