TMI Blog2021 (2) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to include any income excluded from total income of a person and is treated to be income of another person, then such an assessment of the income on such other person shall be deemed to be made in consequence of or to give effect to any finding or direction contained in the said order. Therefore, since the order of assessment has been passed by the tribunal without taking note of Section 150 read with Section 153 as well as explanation 2 to Section 153 of the Act, we answer the additional substantial question of law in favour of the revenue and against the assessee. Therefore, we do not propose to deal with the rival contentions. In the result, the order passed by the tribunal dated 27.04.2016 is quashed and the tribunal is directed to decide the appeal by taking into account the provisions of Section 150 and Section 153 of the Act after affording an opportunity of hearing to the parties. - I.T.A. NO.503 OF 2016 - - - Dated:- 11-1-2021 - HON BLE MR. JUSTICE ALOK ARADHE AND HON BLE MR. JUSTICE NATARAJ RANGASWAMY APPELLANTS (BY SRI. E.I. SANMATHI, ADV.,) RESPONDENT (BY SRI. RAJESH CHANDER KUMAR, ADV.) JUDGMENT ALOK ARADHE J., This appeal under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 143(3) read with Section 153(c) in the hands of the individual by making several additions mainly with regard to sale of properties. 4. The assessee thereupon filed an appeal before the Commissioner of Income Tax (Appeals). In the appeal also the assessee again contended that the income belongs to HUF. It was held that the land belongs to HUF, which devolved on HUF by a registered partition deed dated 05.08.1978 and income arising from sale of the property has to be assessed in the hands of HUF and assessment of income in the hands of individual was held to be incorrect. The Commissioner of Income Tax (Appeals) by an order dated 05.08.2011 directed the Assessing Authority to proceed to against HUF to assess the income as belonging to HUF. The revenue challenged the order passed by the Commissioner of Income Tax (Appeals) before the Income Tax Appellate Tribunal (hereinafter referred to as 'the tribunal' for short). The tribunal by an order dated 25.08.2014 dismissed the appeal preferred by the revenue. A notice under Section 148 of the Act was issued to the HUF for the period under consideration and the assessing authority after recording reasons for tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd directed the Assessing Authority to include the same in the hands of HUF and on receipt of the aforesaid order, the re-assessment proceeding was initiated by the Assessing Authority within parameters of Section 147 of the Act. It is also pointed out that the assessee is blowing hot and cold as in the case of the individual the assessee has contended that HUF is liable to pay tax and incase of HUF, it is contended that reasoning recorded for re-assessment is not in accordance with Section 148 of the Act, which shows the conduct of the assessee who is trying to avoid payment of admitted tax. It is further submitted that the tribunal ought to have appreciated that the assessee has accepted the order of Commissioner of Income Tax (Appeals) holding that HUF is liable to pay tax and if HUF did not exist as per the assessee then the order ought to have challenged before the tribunal by the assessee. Therefore, the assessee cannot now contend that the HUF cannot be taxed. It is also urged that intention of the assessee is to avoid tax and the same is a colorable device. It is submitted that the matter requires re-consideration by the tribunal. In support of aforesaid submissions, relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ', 1991 (187) ITR 43, 'PEICO ELECTRONICS AND ELECTRICALS LIMITED VS. DEPUTY COMMISSIONER OF INCOME TAX AND OTHERS', 1992 SCC ONLINE CAL 368, 'COMMISSINOER OF INCOME TAX, U.P.VS. M/S MOHD. SHAKOOR MOHD. BASHIR', (1973) 4 SCC 107 . 8. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of relevant extracts of clause (a) to Explanation 2 to Section 147, Section 150 and clause (a) and (b) to Explanation 2 to Section 153, which read as under: Explanation 2 - For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:- Clause (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income- tax; 150. Provision for cases where assessment is in pursuance of an order on appeal, etc. (1) Notwithstanding anything contained in section 149, the notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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