TMI Blog1999 (9) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) directed him to treat the same as a valid return under s. 139(4) and to determine the loss (vide appellate order in ITA No. 63-Q/92-93 dt. 21st Jan., 1993). In accordance with the directions of the CIT(A), the AO took up the case for determining the loss. When the case was posted for hearing, partner of the assessee-firm, Shri Rajasabai appeared before the AO and submitted that he was not able to produce the books of accounts as they were in the custody of the erstwhile partner Shri Kanagasabai. In view of the serious dispute and litigation between the two groups of partners, he expressed his inability to get the books of account from Shri Kanagasabai. He also made a request to the AO to issue summons under s. 131 for producing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 1986-87 and that he retired from the partnership w.e.f. 30th Sept., 1991. It was stated that the books of account of the business for the year ending 16th Sept., 1985, were with the retired partner and that after his retirement Shri Kanagasabai had filed a suit against the firm and the continuing partners. Shri Jayakumar drew our attention to the letter issued by Shri Rajasabai, partner of the assessee on 11th Aug., 1993, requesting the AO to issue summons under s. 131 to Shri Kanagasabai for producing the books of account. A copy of the letter is available in the paper book filed before us by the learned representative at page No. 24. From that letter it is clear that the books of accounts had been produced before the AO on 20th Jan., 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1963) 49 ITR 650 (All) and Munna Lal Murlidhar vs. CIT (1971) 79 ITR 540 (All). In the case of EMC (Works) (P) Ltd. the High Court observed as under: "It was the duty of the ITO, in the absence of a notice under s. 22(4) to assist the assessee when it required his assistance by exercising his powers under s. 37 of the Act and thus enable the petitioner to have access or procure the books of accounts which were required to support to return made by it. This application was rejected summarily as already stated but by rejecting this application the ITO could not clutch at jurisdiction to make the assessment under s. 23(4), which the law does not give him. The action of the ITO, therefore, in making the assessment under s. 23(4) was clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accounts for verification by the AO. Suffice it to say that in the circumstances of this case the AO was not correct in making the ex parte assessment without complying with the assessee's request to issue summons for getting the accounts from the erstwhile partner, Shri Kanagasabai. In view of the decisions of the Allahabad High Court, the failure to issue the summons to the other partner, Shri Kanagasabai for producing the accounts would vitiate the proceedings of assessment. 5. We also find merit in the contention of the learned representative that even in an ex parte assessment the AO is bound to make a proper assessment of the income or loss. In this case there is also a specific direction of the CIT(A) in the order in ITA No. 63 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the IT Act on the excess payment advance tax. The CIT(A) has dealt with this ground stating that if the assessee was really aggrieved, they could have taken up the matter when the appeal had been filed earlier before the CIT(A). We do not think that the appellate authority is justified in summarily rejecting the claim that the ground relating to interest under s. 214 should have been raised in the appeal filed originally against the assessment. Sec. 214 of the IT Act provides that the Central Government shall pay simple interest on the amount by which the aggregate sum of any instalments of advance tax paid during any financial year in which they are payable exceeds the amount of the assessed tax from the first day of April next followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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