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TMI Blog1986 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... abeth Raju, one of the daughters, filed a gift-tax return on 15-12-1979. The GTO completed the assessment on 16-3-1982 and served a demand notice on her. According to the Commissioner (Appeals) the gift-tax assessment order dated 16-3-1982 has been communicated to the assessee herein. 3. Aggrieved by the order of the GTO she filed an appeal to the Commissioner (Appeals). Before the Commissioner (Appeals) she urged for the annulment of the assessment since she had not been given any notice of the assessment and relied on the case of Jai Prakash Singh v. CIT [1978] 111 ITR 507 (Gauhati). The Commissioner (Appeals) did not find favour with the contention of the assessee. According to the Commissioner (Appeals) he was unable jot accept the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs. Elizabeth Raju. The GTO had no legal sanction to initiate any proceedings based on a defective return. The assessment proceedings taken by the GTO are wholly illegal requiring the assessment to be annulled and not set aside. The case of Sajjan Kumar Saraf relied on by the Commissioner (Appeals) is not relevant or appropriate in relation to the instant case. In the case of Sajjan Kumar Saraf, the ITO served a notice on a dead person in response to which a legal representative had filed the return. In the instant case there was no notice but the daughter, Mrs. Elizabeth Raju, filed a gift-tax return of her father late Dr. A. O. Mathew. In the case of Sajjan Kumar Saraf it was never made known to the ITO that there were other legal repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Income-tax Act, 1922 to show cause why penalty should not be imposed for failure to file a return in time, the ITO proceeded to impose penalty without affording a hearing. The AAC set aside the order imposing the penalty as defective. On receipt of the AAC's order the ITO issued a further notice calling upon the assessee to appear before him so that the assessee might be given an opportunity of being heard. It was in these circumstances that the Supreme Court had held that "as the Appellate Assistant Commissioner pointed out only to an illegality which vitiated the proceedings after they were lawfully initiated, the notice issued under section 28(1) (a) did not cease to be operative and it was open to the Income-tax Officer to take up the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Indian Income-tax Act, is similar to section 19(2) of the gift-tax Act. In our opinion, the ratio of the decision of the Kerala High Court is squarely applicable to the present case. As the assessment in the instant case was completed by issuing notice only one of the legal representative, namely, Mrs. Elazibeth Raju, following the above cited decision of the Kerala High Court, we have to hold that the assessment itself has become illegal and void. In the circumstances, the Commissioner (Appeals) was not justified in not annulling the assessment but only setting aside the assessment and directing the GTO to make a fresh assessment after bringing all the legal heirs on record.
6. In the result, the appeal is allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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