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2015 (10) TMI 1593 - AT - Income TaxEnhancing effect of income by changing heads of income and imposing tax on the assessee - principles of natural justice denied - not providing the assessee with a reasonable opportunity of being heard - Held that:- if such change of head of income results in enhancement of income and consequently enhancement of tax, then the CIT(A) has to issue a notice u/s 251(1) of the Act before bringing it to tax. The Hon’ble Allahabad High Court in the case of Tarkeshwar Nath Agarwal vs. CST (1974 (3) TMI 92 - ALLAHABAD HIGH COURT ), has held that an assessment can be said to have been enhanced only if the tax assessed has been enhanced. In the case before us, the change of head of income has resulted in enhancement of assessed income and tax thereon and therefore the provisions of sec.251(1) are attracted. From the order of the CIT(A) before us, it is clear that before such enhancement of the assessment, by such change of head of income, no notice u/s 251(2) was issued to the assessee. Therefore, in our opinion, the CIT(A) ought to have issued notice u/s 251(2) of the Act. Since such notice has not been issued by the CIT(A), we set aside the order of the CIT(A) and remit the issue to the file of the CIT(A) with a direction to re-adjudicate the appeal before him de novo in accordance with law after issuing a notice u/s 251(2) of the Act - Decided in favour of assessee for statistical purposes.
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