TMI Blog2002 (12) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:- 3. An extent of 6.12 acres of agricultural lands in Somalwada Tehsil, Nagpur District, hereinafter referred to as 'the property' belonged to one Laxmanrao Sathwane. His four sons and a daughter and widow, viz., (1) Shriram Sathawane, (2) Shri Dhanaji Sathwane, (3) Jagoba Sathwane (4) Shankarrao Sathwane (son of a predeceased son Mr. Ramakrishna Sathwane, (5) Gunabai (Daughter) and (6) Banabai (Widow) became entitled to the property on his death intestate in the year 1973. By an agreement for sale dated 7-5-1981, the legal heirs agreed to sell the property to Engineers Co-operative Housing Society. An application for a certificate under section 230A of the Income-tax Act, 1961 was made by one of the co-owners of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Income-tax, Nagpur on 22-2-1988 praying that the ex parte order of assessment be set aside as he could not attend the hearing before the Assessing Officer due to his ignorance of the legal implications as he was illiterate and could not get proper legal counselling. The CIT by his order dated 12-8-1991 dismissed the revision petition. 6. A notice of demand dated 29-12-1997 was served on the appellant in the present appeal, viz., Mr. Shankarrao Sathwane son of Ramkrishna Sathwane, (hereinafter referred to as 'the appellant') by the Tax Recovery Officer demanding payment of a sum of Rs. 1,45,552 on or before 16-1-1998 and threatening coercive steps in the case of default. On receipt of this notice the appellant obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled HUF and that no opportunity had ever been afforded to him before treating him as a member of the HUF. (iii) that the order of assessment under section 144 of the Income-tax Act, 1961 was bad in law since notice under section 139(2) had been issued to Mr. Shriram Sathwane in his individual name and, therefore, the assessment order in the name of the HUF pursuant to such a notice was not valid. As can be seen from the Genelogy tree that Laxmanrao Sathwane died in 1979 intestate and the property was stated to be his self acquired property. In such circumstances, the case of the appellant is that each co-owner takes the property in his own right as a legal heir of late Laxmanrao Sathwane and the property will never be a HUF property. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and without jurisdiction. (4) The appellant was not given any opportunity before making the assessment under section 144 and before treating him as a member of the HUF of Shri Shriram Sathwane. (5) The assessment made including the whole-sale price for purpose of capital gain in the name of Sri Shriram Sathwane as HUF is invalid and illegal." On the first ground of appeal, we are in complete agreement with the submission of the learned counsel for the assessee. The definition of 'assessee' contained in section 2(7) of the Income-tax Act, 1961 reads as follows: "2(7) "assessee" means a person by whom any tax or any other sum of money is payable under this Act, and includes - (a) every person in respect of whom any proceeding under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved by any order of the Assessing Officer where the assessee denies his liability to be assessed under the I.T. Act or objects to the status under which he is assessed. The following decisions of the Hon'ble High Court on which the learned counsel for the assessee relied have held that any person on whom tax liability is sought to be recovered would be an assessee aggrieved entitled to file an appeal under section 246 of the Income-tax Act, 1961. 1. Benoy Kurian v. AgrL ITO [1998] 234 ITR 617 (Ker.) 2. CIT v. Hindustan Steel Ltd. [1989] 179 ITR 213 (Cal.) 3. CIT v. N. Ch. R. Row Co. [1983] 144 ITR 557 (Cal.) 4. Kikabhai Abdul AH v. ITAT[1951} 32 ITR 762 (Bom.). In view of the above, we hold that the appellant had locus st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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