TMI Blog2007 (4) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Rules, 1962; (ii)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the Income-tax Officer was given reasonable opportunity to examine/rebut the evidence in the form of a death certificate of Smt. Darshna Devi; (iii)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the finding of the CIT (Appeals) regarding genuineness of the firm was not questioned before the Appellate Tribunal; (iv)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that Smt. Darshna Devi could not be said to be the same person as Smt. Darshna Devi Gupta of Ambala; (v)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the said Smt. Darshna Devi whose death certificate was relied upon by the assessee was same who was a partner of the assessee-firm for the assessment year 1973-74; and (vi)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that a genuine firm was in existence for assessment year 1973-74 ? 2. The controve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndigarh. However, the Assessing Officer recorded the conclusion that she has not been a genuine partner as her name has been introduced by the firm with a view to avoid incidence of taxation. Accordingly, the registration originally granted in respect of the assessment year 1972-73 under section 186(1) of the Act was cancelled vide order dated 28-3-1981. On 14-12-1981 a notice was issued to the assessee-firm to show cause as to why registration granted under section 185(1)(a) on 17-1-1976 should not be cancelled. The assessee-firm was also asked to produce Darshna Devi on 18-12-1981 if it so desires. The assessee-firm appeared through its counsel and filed written reply that in respect of the previous year the assessee-firm had filed appeal before the Commissioner of Income-tax (Appeals), Chandigarh against the order of the Income-tax Officer passed under section 186(1) cancelling the registration. Accordingly a request was made to await for the result of the appeal before taking the proposed action in respect of the subsequent years. Accordingly, the hearing was deferred to 28-12-1981 and to subsequent dates. However. Smt. Darshna Devi was not produced. On 31-12-1981 the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this certificate was intended to be filed on 4-3-1982 before the Commissioner of Income-tax (Appeals). That is why this letter bears the date as 4-3-1982. As pointed out earlier the death certificate is dated 5-3-1982. This certificate was not with the assessee on 4-3-1982 and, therefore, it could not have been filed on 4-3-1982. Sh. D.S. Gupta, the learned counsel for the assessee produced in original the acknowledgement from the office of the Commissioner of Income-tax (Appeals) to show that the letter dated 4-3-1982 along with certificate of death dated 5-3-1982 was filed on 6-3-1982. This fact has not been converted by the learned Departmental Representative. Not only this, this certificate has duly been considered by the Commissioner of Income-tax (Appeals) and a finding has been recorded thereon. From these facts it appears probable that the death certificate which was contemplated to be obtained was in focus on 4-3-1982 the last date of hearing of appeal before the Commissioner of Income-tax (Appeals), it would, therefore, be not unreasonable to presume that the Commissioner of Income-tax (Appeals) allowed the assessee to file this certificate immediately after the same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Reading of these statements as a whole will show that Smt. Darshna Devi could not be said to be the same person as Darshna Gupta of Ambala. Before the Commissioner of Income-tax (Appeals) the claim of Sh. Kuldip Parkash partner had been that after Smt. Darshna Devi; left the firm, he lost tough with her and her where abouts could not be known. He continued his efforts to locate her and ultimately it could be found that that she expired in February, 1982 and in support of this, a certificate from the Chief Registrar of Births and Deaths and duly brought on record. This has been considered by the Commissioner of Income-tax (Appeals). This fact is also established by the order of the Commissioner of Income-tax (Appeals) for the assessment year 1975-76 in assessee s Appeal No. 718/Chandi./81082, dated 30-7-1982 which reads as under : However, while the appellate proceedings were being taken up I had told that Smt. Darshna Devi be produced before me. The appellant showed inability with the plea that said Darshna Devi who had been partner in the appellant firm had died, instead a death certificate was produced before me. The definite evidence that Smt. Darshna Devi was not sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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