High Court Of Madhya Pradesh : Indore Bench
CIT vs. Sunder Lal Chaturbhuj
Sections 147, 148
Asst. Year 1987-88
A.M. Sapre & Ashok Kumar Tiwari, JJ.
IT Ref. No. 2 of 2004
22nd March, 2005
Counsel Appeared
R.L. Jain with Ku. V. Mandlik, for the Applicant : S.C. Bagadia with D.K. Chhabra, for the Respondent
ORDER
A.M. Sapre, J. :
This is an income-tax reference made at the instance of CIT under s. 256(1) of IT Act to this Court in RA No. 147/Ind/1998 which arises out of an appellate order of the Tribunal, dt. 21st July, 2003, passed in ITA No. 5 of 2000 to answer following questions of law : “1. Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in annulling the assessment ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the return filed by the assessee in the status of HUF on 13th April, 1989, was invalid and non est in the eyes of law ?” In short the case of the assessee as one can notice from the facts stated in the statement of case drawn by the Tribunal is that since the notice of reassessment under s. 148 of IT Act for the asst. yr. 1987-88, was issued to assessee in the status of an individual (GIR B-737) and hence, any assessment made in capacity of HUF, i.e., the impugned assessment is bad in law, without jurisdiction and non est in law. It is contended that when the notice is issued in the name of individual, no assessment can be made in the case of HUF it being an altogether different entity in the eye of law as against an individual. It is thus contended that this argument was rightly accepted by the Tribunal in favour of assessee for annulling the assessment made on the strength of return filed by assessee on 13th April, 1989. Heard Shri R.L. Jain, learned senior counsel with Ku. V. Mandlik, learned counsel for the applicant/Revenue and Shri S.C. Bagadia, learned senior counsel with Shri D.K. Chhabra, learned counsel for the non-applicant/assessee.
Having heard learned counsel for the parties and having perused record of the case, we answer the question referred to this Court in favour of CIT and against assessee. Indeed, the following statement of fact itself would demonstrate that assessee has no case :
“After dropping the proceedings, the same AO recorded the reasons for reopening the assessment in the hands of the ‘HUF’ on the same day and issued a fresh notice under s. 148 to the assessee in the status of ‘HUF’ on 22nd Nov., 1990. This notice was replied to by the assessee vide its letter dt. 20th Dec., 1990 stating therein that return had already been filed in the status of ‘HUF’ and the assessment was pending with the request to consider this state of affairs and oblige the assessee.”
It is, therefore, a clear case where in the first place assessee themselves filed the return in their capacity as HUF and secondly by their letter dt. 20th Dec., 1990, requested the AO to treat the return to have been filed in the status of HUF. In this view of the matter, it cannot be now contended by the assessee that notice in question was defective. Indeed, it being an admitted fact that though the original notice was sent to individual pursuant to which the assessee filed the return in the status of HUF, the AO then issued proper notice addressed to HUF pending return to which the assessee replied saying that the return already filed be treated as HUF. In the facts found, it cannot be said that the assessment made is without jurisdiction. It was a clear case of mistake which was rectified to the full knowledge of assessee to which they themselves replied and submitted to the jurisdiction of the AO pursuant to proper notice issued under s. 148 of IT Act. Learned counsel for the assessee placed reliance on the decisions reported in CIT vs. K. Adinarayana Murty (1967) 65 ITR 607 (SC), Sewlal Daga vs. CIT (1965) 55 ITR 406 (Cal), ITO & Ors. vs. Chandi Prasad Modi (1979) 119 ITR 340 (Cal) and Smt. Harbans Kaur vs. ITO (1993) 204 ITR 685 (P&H) and contended that when the two capacities namely, individual and HUF are different under the IT Act, the notice sent to one capacity cannot be used for other. There can be no quarrel to this proposition of law. However, in the facts of this case, such does not appear to be a case. It is clear when one reads the statement of case and the portion of which is quoted supra. We, therefore, cannot accept this submission as it is distinguishable on facts. In view of aforesaid discussion, we answer the questions referred to this Court in favour of CIT and against the assessee. No costs.
[Citation : 284 ITR 574]
