TMI Blog2005 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT M/s. Atul Traders, the petitioner, in the abovenoted three writ petitions, is a registered partnership firm engaged in the business of sale of dhan bhoosi and filed returns for the assessment years 1978-79, 1979-80 and 1982-83 under the Income-tax Act. The books of account, maintained in the normal course of business were also produced showing certain loan taken from one J.P. Bajpayee, (karta HUF) and also payment of interest accrued thereon. M/s. Atul Traders, being aggrieved, challenged the above assessment orders by means of Appeal No. CIT A)/6/Etawah/89-90 pertaining to the assessment year 1978-79, (decided by the Commissioner of Income-tax (Appeals) on March 3, 1992, (annexure 5 to the Writ Petition No. 812 of 1993). Against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate order relating to the assessment year 1978-79 challenged in Writ Petition No. 812 of 1993, the Commissioner of Income-tax (Appeals) observed "... Assessing Officer would be free to take appropriate action in the case of the appellant in 1977-78 ..." However, in para. 10 of the said impugned order the Commissioner of Income-tax (Appeals) had while concluding his order observed:" ... Reduction allowed ... with directions for action under section 150/251 as per this order as well as order of even date in the assessment year 1982-83 ..." In para. 31 of the impugned order dated March 3,1992, pertaining to the assessment year 1982-83, the Commissioner of Income-tax (Appeals) had given categorical direction for taking action under section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g positive compliance. When it is left to the option and discretion of the Income-tax Officer whether or not to take action, it cannot, in our opinion, be described as a direction." On the basis of the abovequoted passage an attempt is being made to argue that the word "free" in one of the impugned orders (referred to above), shows that there is no concluded direction as such under section 153(3)(iii), read with Explanation 3 of the Act. We are unable to accept the aforesaid contention made on behalf of learned counsel for the petitioner for more than one reason. The word "free" has been used only in one of the three orders. And that too the passage where such expression is used is followed by another concluding paragraph where no such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do not propose to hold that M/s. Atul Traders and M/s. Atul Industrial Corporation are one entity/juristic person. No such submission has either been raised on behalf of the respondents. The contention of the respondent on this point is that M/s. Atul Traders was not required to be given separate notice for affording opportunity of hearing under section 153(3), Explanation 3, as that would have been a mere empty formality. Explanation 3 of section 153 reads: "... provided such other person was given an opportunity of being heard before the said order was passed". Obviously, the words "before the said order was passed" refers to the order proposed to be passed by the appellate authority. Record of the three writ petitions shows that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation 3 of section 153 of the Act. The relevant portion of the judgment reads: "The intendment of the Explanation 3 to section 153 when it says 'such other person was given an opportunity of being heard before the said order was passed' is apparent. The person concerned must be put on notice that the consequence of the income being held as his is likely to follow in the proceedings prosecuted. Further more, he must be given an opportunity of being heard on that question...." The object of giving notice is to inform a "person" concerned with the matter. If a person receives information/notice by any source and thus had opportunity of defending him, then the mere fact that notice as per statutory provision, or in a particular mode prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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