TMI Blog2012 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... Court) - Held that: it is quire clear, after applying the law laid down by the Full Bench that for modifying the status of the AOP consisting of 3 persons to a BOI consisting of 2 persons, that the CIT could not have acted on his own - there is no doubt that the order passed by the CIT which was upheld by the Tribunal whereby the status of the assessee was "merely" modified from AOP to BOI is not sustainable This notice can be issued only after obtaining the approval of the CBDT since more than 35 years have gone by from the date of the original assessment made on 28.02.1975 - Decided in favor of the assessee by way of remand to AO - ITTA No.17 Of 2000 - - - Dated:- 9-2-2012 - Madan B Lokur, Sanjay Kumar, JJ. For Appellant: Sri Y R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned above. 4. The facts of the case are somewhat detailed in as much as it appears from the record that initially an assessment was completed on 28.02.1975 in respect of the assessee in the status of Association Of Persons (AOP) comprising 18 persons in the name of 'Gutta Anjaneyulu Co.'. 5. The assessee filed an appeal before the Appellate Assistant Commissioner of Income Tax (AAC) and it was held by an order dated 17.12.1975 that there is no entity by the name 'Gutta Anajaneyulu Co.' as an AOP. 6. In view of the decision given by the AAC, the assessment was reopened by the Income Tax Officer (ITO) by issuing a notice under Section 148 of the Act to the assessee in the status of an unregistered firm. After this notice, a fresh a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has drawn our attention to a decision of the Full Bench of this Court in PANNABAI v. COMMISSIONER OF INCOME-TAX 1985 153 ITR 608 (AP) . While summing up the matter, the Full Bench held at page 625 as follows: "To sum up, the Tribunal having held that Smt.Panna Bai could not be assessed to tax in the status of an "individual" on the income derived from the firm erred in modifying the assessment in the status of a "body of individuals" consisting of Smt. Panna Bai and her minor children. The Tribunal should have annulled the assessment with liberty to the ITO to assess the income in the status of a body of individuals, if permitted by law, after issuing notice to that body of individuals to submit a return as required by s.139(2) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act is wrongly issued to the assessee in the status of an "individual" and not in the correct status of "Hindu undivided family" the notice is illegal and all proceedings taken under that notice are ultra vires and without jurisdiction" 15. In our opinion, therefore, there is no doubt that the order passed by the CIT which was upheld by the Tribunal whereby the status of the assessee was "merely" modified from AOP to BOI is not sustainable. The assessment proceedings are required to be set aside and we do so. Liberty is granted to the Revenue to issue a fresh notice to the assessee according to law. This notice can be issued only after obtaining the approval of the CBDT since more than 35 years have gone by from the date of the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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