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TMI Blog2005 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax (Appeals) who held that the Assessing Officer was not having jurisdiction to make an assessment on AOP of two members?" The brief facts of the case are as follows: The assessing authority issued notice under section 148 of the Act to Sri Ashok Kumar Bharti, Sri Vijay Kumar Goel and Sri S.P. Garg the members of the AOP through Shri Ashok Kumar Bharti, 31, Phool Bagh Colony, Meerut, calling upon the assessee to furnish the return of "income of the AOP consisting of Shri Vijay Kumar Goel, Shri S.P. Garg and you". This notice is dated February 15, 1988. The return of income was filed on March 30, 1988, wherein income of Rs. 16,340 was disclosed. Assessment was completed by the Assessing Officer on March 30, 1988, on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the status of AOP consisting of Shri Ashok Kumar and Sri Vijay Kumar Goel, the assessment order cannot be held to be invalid. He submitted that in pursuance of the notice, Shri Ashok Kumar appeared and participated in the assessment proceedings, therefore, a proper opportunity was given and hence the order passed in the status of AOP consisting of Ashok Kumar and Vijay Kumar Goel is valid. He relied upon the decisions in the case of Rajmani Devi v. CIT reported in [1937] 5 ITR 631 (All), Chatturam v. CIT reported in [1947] 15 ITR 302 (FC), CIT v. Kanpur Coal Syndicate reported in [1964] 53 ITR 225 (SC), Estate of Late Rangalal Jajodia v. CIT reported in [1971] 79 ITR 505 (SC), G. Murugesan and Bros. v. CIT reported in [1973] 88 ITR 432 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of his contention, he relied upon the decisions in the cases of CIT v. Indira Balkrishna reported in [1960] 39 ITR 546 (SC), Mohamed Noorullah (representing Khan Sahib Mohd. Oomer Sahib) v. CIT reported in [1961] 42 ITR 115 (SC), CIT v. Bibhuti Bhusan Mallick reported in [1987] 165 ITR 107 (Cal), CIT v. Ishwar Singh and Sons reported in [1981] 131 ITR 480 (All), P.N. Sasikumar v. CIT reported in [1988] 170 ITR 80 (Ker), Gokul Chand v. ITO reported in [1995] 211 ITR 738 (All) and CIT v. K. Adinarayana Murty reported in [1967] 65 ITR 607 (SC); AIR 1967 SC 1545. Having heard learned counsel for the parties, we have perused the order of the Tribunal and the authorities below and given our anxious consideration to the submissions. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Laxmi Narain Anand Prakash v. CST reported in [1980] 46 STC 71 (All); [1980] UPTC 125, the Full Bench of this court held that the service of the notice under section 21 which is equivalent to the notice under section 148 of the Act, is a condition precedent to assume jurisdiction and mere knowledge or participation in the proceedings will not validate the proceedings which are not proper. In the case of Sikri Brothers and Co. v. CST reported in [1979] UPTC 1490, this court held as follows: "Invalidity of the notice goes to the very root of the matter and when once it is found that the notice instead of being addressed to the dealer who was to be made liable for the escaped turnover was addressed to an entity which did not exist, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifying whether it was issued to principal officer or a member of an AOP consisting of (5) and others, the assessment order made in the status of AOP consisting of (5) and others has been held invalid. In the case of G. Murugesan and Bros. v. CIT reported in [1973] 88 ITR 432, the Supreme Court observed as follows: "For forming an 'association of persons', the members of association must join together for the purpose of producing an income. An 'association of persons' can be formed only when two or more individuals voluntarily combine together for a certain purpose. Hence, volition on the part of the members of the association is an essential ingredient." In the case of CIT v. Indira Balkrishna reported in [1960] 39 ITR 546 the apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the reassessment order was proposed to be made and has been made in the status of AOP consisting of Shri Ashok Kumar Bharti and Sri Vijay Kumar Goel, while admittedly, the notice was issued to the AOP consisting of Shri Ashok Kumar Bharti, Shri Vijay Kumar Goel and Shri S.P. Garg. A perusal of the assessment order also shows that the entire material which has been considered for making the reassessment was relating to Shri Ashok Kumar Bharti and Shri Vijay Kumar Goel and it has been held that they have carried on the business of coal jointly as an association of persons and the name of Shri S.P. Garg has nowhere been referred to or considered. In this view of the matter, the assessment made in the status of AOP consisting of Shri Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X
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