TMI Blog2008 (4) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... that no finding need be recorded in so far as the exemption claimed by the assessee under section 54 of the act pertaining to one dwelling house as four dwelling houses was concerned in view of its finding recorded in ITA No. 59/B/1999? 4. ITA No. 22/2003 has been admitted on the following substantial question of law: 1. Whether the Tribunal was correct in holding that the entire assessment proceeding should be treated as annulled when the Appellate Commissioner after noticing that there being certain irregularities in the assessment had set aside the same and correctly remanded the matter back for fresh assessment? 2. Whether the Tribunal recorded a perverse finding by holding that assumption of jurisdiction by the Assessing officer was defective and the notice under sections 147/148 of the act was fraught with defects and infirmities despite there being absolutely no material on record, to arrive at such a finding? 5. Facts, which lie in narrow compass, are mentioned hereinbelow: Assessee is an individual. Under a will dated 13.06.1996 executed by his father, assessee became the owner of the propery bearing No. 17, National High School Road, V.V. Puram, Bangalore. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, he had not filed any complete return and the Assessing officer has also contended that there were certain irregularities in the procedure adopted. Thus the Appellate Commissioner was pleased to set aside the assessment passed and directed the Assessing Officer to give an opportunity to the appellant and to co-operate with the Assessing Officer in passing fresh assessment orders. Thus the appeal filed by the assessee came to be allowed on 04.12.1998. However, Revenue did not prefer to issue fresh notice under Section 148 of the Act. The Assessing officer also reaffirmed the earlier order passed by him even after remand. Subsequent assessment order was passed purportedly exercising the power conferred on the Assessing Officer under Section 143(3)(3) read with Section 147 of the Act. Assessee feeling aggrieved by the said Older, preferred an appeal before the Appellate Commissioner. The Appellate Commissioner was also pleased to hold exemption in respect of one dwelling unit. Consequently, the order of the Assessing Officer was upheld and the appeal preferred by the assessee came to be dismissed. Assessee feeling further aggrieved by the said appellate older, prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the expiry- of 31 days from the date of service of this notice, a in the prescribed form of your income --------------------------------------------------The income of -------------------------in respect of which you assessable. For the said assessment year. This notice is being issued after obtaining the necessary satisfaction of the Deputy Commissioner/Commissioner/ Chief Commissioner of Income-tax. Sd/- (M. DORERAJU) Income-tax Officer, Wald.5(5), Bangalore. NOTE : If you feel any difficulty in the matter of obtaining a return from applicable to you for filing in the return from or desire any clarification on any other matter pertaining to your Income-tax Liability, you may please contact the Public Relations Officer/ Income-tax Officer (Head Quarters/ Assessing Officer. 8. Critical examination of the said no tice show s that most o f the relevant places have been left blank. Nothing has been mentioned in the notice, which would have conveyed the necessary information to the assessee to have acted pursuant to the said notice. Requitement of sending notice under Section 148 of the Act is that before making assessment, Re-assessment or re- computa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made in the status of an 'association of persons' 13. The said question has been answered by the Division Bench of the Kerala High Court as under: We have already held that the issue and service of a notice under section 148 is a condition precedent or a matter of jurisdiction, In that view, before assessing an association of persons , as enjoined by section 282(2)(c) of the Income-tax Act, the notice should be addressed to the principal officer or a member thereof. Admittedly, it has not been done in this case, That means, there was no notice to the association of persons which was assessed to tax. We are of the view that it is a case where no notice' was sent to the assesseer, the association of persons as enjoined by law. The entire proceedings are, in the circumstances, void and illegal and totally without jurisdiction. Such a fundamental infirmity cannot be called a technical objection or a mere irregularity and such vital infirmity cannot be cured or obliterated by relying on section 292B of the Income-tax Act. It is not a case of a notice issued or served, but which is beset with any mistake, defect or omission. This is a case of no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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