TMI Blog2012 (10) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... and, in fact, the assessee has filed appeal against such assessment order which is pending before the CIT(A) - the assessee’s apprehension, that if it had not filed the appeal against letter dated 3rd November, 2010 it would be presumed that the assessee is liable to Income-tax Act, is misplaced and that in its appeal against the assessment order dated 31st December, 2010, if so advised, the assessee may still deny its liability to be assessed under the Income-tax Act and if so denied, then the appellate authority would decide the same on merits. CIT(A) was justified in holding that the appeals of the assessee against the letter dated 3rd November, 2010 were not maintainable - against assessee. - ITA Nos.5113/Del/2011 to 5123/Del/2011 - - - Dated:- 12-10-2012 - SHRI G.D. AGRAWAL, AND SHRI A.D. JAIN, JJ. Appellant by : Shri Subhash Dutta, Advocate. Respondent by : Shri Ram Bilash Meena, Sr.DR. ORDER PER G.D. AGRAWAL, VP : These appeals are filed by the assessee against the consolidated order of learned CIT(A)-XXI, New Delhi dated 31st August, 2011 for the AY 1979-80 to 1983-84, 86-87, 89-90, 88-89 and 1990-91 to 1992-93. 2. In all these appeals, comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeal before the CIT(A). The CIT(A), vide order dated 31st August, 2011, held that the appeals are not maintainable. Against such order of CIT(A), the assessee is in appeal on the grounds as reproduced above in paragraph No.2. 4. At the time of hearing before us, it is submitted by the learned counsel that under Section 246(1)(a) where an assessee denies his liability to be assessed under the IT Act, he can file appeal against any order where such issue is decided against the assessee. That the issue of assessee s liability to be assessed under the IT Act was decided by the Assessing Officer vide letter dated 3rd November, 2010. Therefore, the assessee rightly filed the appeal against the order of the Assessing Officer vide letter dated 3rd November, 2010 before the learned CIT(A) and he ought to have admitted the same. In support of this contention, he relied upon the following decisions:- (i) CIT Vs. Indira Balakrishna (1960) 39 ITR 546(SC). (ii) CIT Vs. Kanpur Coal Syndicate (1964) 53 ITR 225 (SC). (iii) Smt.Bhagwant Kour Vs. CIT (1997) 223 ITR 242 (P H). (iv) Nepal Chandra Banerji Vs. Commercial Taxes Officer and Ors. (1977) 40 STC 23 (Cal.). (v) Jaswant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not liable to be assessed under the Income-tax Act. 6. We have carefully considered the arguments of both the sides and perused the material placed before us. The impugned appeals before us are against the order of learned CIT(A) dated 31st August, 2011. The brief order of the CIT(A) reads as under:- Sir, Sub : Your request to file appeal for assessment years 1979-80, 1980-81, 1981-82, 1982-83, 1986-87, 1988-89, 1989-90, 1990-91, 1991-92 and 1992-93 reg. Ref : Your reply filed vide letter dated 24.1.2011 for assessment years 1979-80, 1980-81, 1981-82, 1982- 83, 1986-87,1988-89, 1989-90, 1990-91, 1991-92 and 1992-93. Please refer to above. 2. I have gone through your reply and in my considered opinion your appeals are not maintainable for assessment years 1979-80, 1980-81, 1981-82, 1982-83, 1983-84, 1986-87, 1988-89, 1989-90, 1990-91, 1991-92 and 1992- 93 filed with Form No.35 dated 3.12.2010 because it is not an order as per provisions of Sec. 246 sub-section (a) to (I). This is for your information. 7. From the above, it is evident that in the letter or order dated 31st August, 2011, the CIT(A) has only stated that the appeals filed by the assessee are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue whether the assessee falls within the definition of a person as provided in Section 2(31) of the act for the relevant assessment years. Further, the A.O. shall also consider the directions as given in the order of this Tribunal in the case of the assessee for the Assessment Year 1994-95 and 1995-96 in I.T.A.Nos.1839 1840/Del/2005 dated 15.01.2007 also apply for these de novo assessments. 6. Further as it is noticed that there is an internal dispute in the society in so far as two groups are claiming control over the society and as it is noticed that neither of the groups have been able to successfully establish their control over the society and as it is also noticed that the members of both the groups are members of the society, considering the fact that the A.O. would find it difficult in respect of issuing of the notice to any specific person in the society, acceding to the request of the ld.DR and ld. A.Rs, the first date of hearing before the A.O. is being fixed 13th January 2010 on which date all such persons who wish to represent the assessee society M/s Aparna Ashram from out of the members of the assessee society shall make representation before the A.O. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be filed. On this date you were requested to supply copies of seizure memos so that a request may be made for supply of copies of seized books of account or inspection may be made so that a proper assessment could be made. These copies were required to be supplied on 03.03.2010. On this date you were again reminded to furnish the seizure memos. On 10.03.2010 vide your letter dated 10.03.2010 you informed that after the death of Swami Dhirendra Brahymachari the Govt. of Jammu and Kashmir ousted the assessee from the possession of the property on 10.06.1994. On 12.08.1994 the Divisional Commissioner Jammu had appointed Nodal Officer in respect of all the properties of the assessee society and you gave the address of the Nodal Officer. You also filed a copy of letter dated 28.09.1995 submitted before the DDIT(Exemp), New Delhi in this regard. You also filed a copy of the order in Probate case No.46/1994 for reference to facilitate to know the relevant authority under whom the documents were lying. In respect of books of account/documents etc. with the Nodal Officer, Jammu, a letter was written to him to supply copies of the seized records. Vide his letter dated 25.08.2010 he informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/records. Please note that it is the general practice rather a procedural requirement that whenever an authority makes seizure of certain books of accounts, documents, etc., a seizure memo or a Panchnama in drawn alongwith an inventory of the seized books of accounts/documents and a copy of the same is mandatorily given to the person (s) from whose premises/custody the seizure is made. It may be mentioned that such copy of the seizure memo/panchnama and inventory of books of account/documents, in respect of the seizures made in your case by various authorities must be available with you but it appears that the same is being with held by you for the reasons best known to you. In view of the above, you are once again requested to please produce the relevant books of account, documents and other records so that a proper assessment may be made. Please note that for failure to the relevant record, this office will be left with no other alternative than to complete the assessment(s) on the basis of material available on record and past history of the case. Notices u/s 143(2) and 142(1) are enclosed for compliance on 23.11.2010. 10. From the above, it is evident that the above let ..... X X X X Extracts X X X X X X X X Extracts X X X X
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