TMI Blog2016 (5) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... ause notice dated 06.11.2015. After receiving the explanation and hearing the submissions on behalf of the petitioner, the CIT (Appeals) is directed to pass orders, on merits and in accordance with law. - W.P. NO. 37072 of 2015 And M.P. No. 1 of 2015 - - - Dated:- 11-2-2016 - Mr. M. DURAISWAMY, J For the Petitioner : M/s T.C.A. Sangeetha For the Respondents : Mr.T. Pramod Kumar Chopda ORDER The petitioner has filed the above writ petition to issue a Writ of Certiorari to call for the records and quash the impugned show cause notice for enhancement of assessment issued by the first respondent in ITA No.83/2015-16 (wrongly mentioined as ITA No.85/2015-16) dated 6.11.2015 for the assessment year 2012-13. 2. According to the petitioner, it is a Partnership Firm trading in stocks, shares, debentures, manufacturing, buying, selling and transporting of various consumer and industrial commodities. The petitioner filed its Return for Assessment Year 2012-2013 on 29.09.2012, admitting a total income of ₹ 1,74,36,050. The Reutrn of Income was processed under Sec.143(1) of the Income Tax Act, 1961 and selected for scrutiny. Many details were called for and after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other business that has for its object the acquisition of gain by the company, assocaition or partnership or by the individual members thereof, unless it is registered as a company under this Act, or is formed in pursuance of some other Indian law. Further, the first respondent contended that on verification of the records, it was found that two firms viz., M/s Krupa Trading Co, having six partners and M/s DCP Trading Co., also having six partners were the 14th and 15th partners in the petitioner firm, consisting of 16 partners. The first respondent further submitted that since all the partners in both the above firms were not representing in the petitioner firm and only one of the partners each represented their respective firm, and therefore, the petitioner cannot be considered to be a valid partnership firm, as per the law laid down by the Hon'ble Supreme Court of India in the case of Dulichand Laxminarayan vs Commissioner of Income-Tax (1956) 29 ITR 535 (SC). Therefore, according to the first respondent, the partnership deed of the two firms shows that they are having six partners each and therefore, as per the law, the total number of partners in the present case exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther time for filing C forms. We do not, however, accept the implication in the Government Pleader's further contention that an appellate authority cannot be brought within the meaning of the expression assessing authority . In one sense, an appeal may be different from an assessment. But the difference lies only in the particular stage of the proceeding and in the particular authority having jurisdiction in the two stages. Basically, an appeal does not differ from an assessment. Just as is the case with any other appeal under our legal system, an appeal from a sales tax assessment is only a rehearing or a retrial. In the absence of any statutory inhibitions or restrictions, an appellate authority has precisely the same powers, exercisable or in the same manner and to the same extent, as the assessing authority has, in the first instance. If this were not the position, no appellate authority can effectively function while hearing and determining an appeal from an assessment. Under the scheme of section 9 of the Central Sales Tax Act, appeals from Central sales tax assessments will have to be dealt with in the same manner and under the same procedure as provided for under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enabling section, or the rule, as the case may be, expressly refers to the assessing authority, as the repository of the power, it is elementary construction to hold that such power can be, and is intended to be, exercised by the assessing authority named in the particular provision concerned. But, it does not mean that the appellate authority and any other fiscal authority who are in seisin of the assessment, either in appeal, or in revision or in any other proceeding, cannot exercise a like power. The fact that the appellate authority is not expressly mentioned in the provision conferring the enabling power, does not mean that the legislature intended to exclude that authority from the purview of the provision. 10. In the judgment relied upon by the learned counsel for the petitioner, the Commissioner of Income Tax (Appeals) directed the petitioner Company therein to show cause as to why the provisions of Sec.251(1)(a) of the Income Tax Act should not be invoked for the Assessment Years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and the income liable to tax should not be enhanced and why the books of accounts of the petitioner Company should not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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