TMI Blog2001 (2) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Income-tax Appellate Tribunal was legally justified in holding that the action of the Assessing Officer in non-issuing of notices of one LH was not bona fide and diligent? 2. Whether, on the facts and in the circumstances of' the case, the Income-tax Appellate Tribunal was legally justified in annulling the assessment order passed by the Assessing Officer?" The relevant facts for the present purposes are that the assessee who was liable to be assessed for the assessment year 1985-86 was Kantilal Saraf an individual who was deriving income as partner from a registered firm, Usha Bleaching Centre, Pali, and also from tuitions. He died on July 9, 1986, leaving behind him the following legal heirs and representatives, namely : 1. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. For reaching this conclusion he relied upon the decision of the Calcutta High Court in Kumar Saraf v. CIT [1978] 114 ITR 155. He, therefore, set aside the assessment and remanded the case back to the Income-tax Officer for making fresh assessment in accordance with law. The order of the Commissioner of Income-tax (Appeals) was passed on August 3, 1989, which was made the subject-matter of the appeal by the assessee which was Appeal No. 1409 of 1989. Meanwhile, in compliance with the order passed by the Commissioner of Income-tax (Appeals), dated August 3, 1989, the Income-tax Officer, issued notice to the five legal representatives out of seven legal representatives of the deceased assessee. By his letter dated November 12, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sheet. He, therefore, held that the order made by the Income-tax Officer under section 144 was bad and the assessment so made was not proper. He, however, once again set aside the assessment and sent it back to the Income-tax Officer directing him to again issue the notices to all the legal representatives in accordance with law and then complete the assessment afresh in accordance with law after considering the material on record and giving proper opportunity of being heard to all the legal representatives. Against the order passed by the Commissioner of Income-tax (Appeals) on March 13, 1991, both the assessee as well as the Revenue preferred their respective appeals before the Tribunal. The five legal representatives of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the two questions referred to above have been raised for the opinion of this court. The real controversy is contained in question No. 2, whether, on the facts and circumstances of the case, the Tribunal was justified in annulling the assessment order passed by the Income-tax Officer. The fact of the acceptance of the finding that the Income-tax Officer has not acted bonafide and diligently in not issuing notice to all the legal representatives cannot be effaced. They are accepting that no notice at all was served to them. The controversy as to the effect of not serving one or more of the legal representatives of the assessee on the assessment made on the returns filed by one or several legal representatives has been stated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accept the contention of the assessee saying that in the absence of any notice to all the legal representatives, the assessments were illegal and void and must be set aside, and he, accordingly, set aside and remitted the matter to the Income tax Officer for making fresh assessment after notice to all the legal representatives. This order was confirmed by the Tribunal. On a reference, the High Court held that in the absence of service of notice on all the legal representatives, the assessment made upon them was a nullity. The Supreme Court reversed the judgment of the Gauhati High Court as afore said and upheld the order of the Tribunal and remitted the case back to the assessing authority for deciding the matter afresh after notice to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Assessing Officer in not issuing notice to one of the legal representatives was not bona fide and diligent. It is apparent that in spite of having full knowledge about the name and address of the legal representatives and clear directions of the Commissioner of Income-tax at the first instance, the Assessing Officer has not issued notice to two of the legal representatives at all. Further, she even did not care to issue notice to the legal representatives to whom they were issued separately at their respective addresses and without even making effort to know about their current addresses and to serve all of them properly and individually. This litigation is the direct result of such reckless act of the Assessing Officer in disre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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