9911796707
TMI Blog2017 (1) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kolkata dated 29.07.2013 dismissing the appeal filed on the ground that the appeal was not signed by a person authorized to sign the return of income under section 140 of the Income Tax Act, 1961 is arbitrary is as much as Smt. Aparna Phumra being the Partner of the erstwhile firm was very much authorised by Section 140 to file the return. (2). That the LD. CIT(A) erred in having dismissed the appeal holding the assessment order was served by a fixation on 30.12.2010 whereas the same should have been served on the partner of the firm pursuant to the dissolution of the firm and the order having been received by erstwhile partner on 20.11.2012, the appeal was very much in time. (3). That the order of the Ld. CIT(A) should accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment) on the ground that he detected that the assessee showed closing stock of Rs. 11,88,339/- whereas the closing stock furnished towards the bank was Rs. 42,28,999/- which according to the AO was not accounted for by the assessee in the P/L Act. So, according to the AO there was an under assessment of income to the tune of Rs. 31,10,660/- on which tax has escaped assessment. According to the AO, on the aforesaid reason, notice u/s 148 of the Act was served upon the assessee by affixture on 16.04.2009. Thereafter, the AO simply notes that since the case is going to be time barred on 31.03.2010 he had no other alternative but to invoke Section 144 of the Act (Best Judgment Assessment) and he added Rs. 31,10,660/- to the total inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condone the delay noting that the impugned order of the AO was dt. 24.12.2010 and that the AO had conveyed to him (CIT(A)) that he has served the same by affixture on 30.12.2010, since, the registered post to the address of the firm was returned unserved with postal remarks "not known". So, according to the Ld. CIT(A) it was established that the order of the AO and the demand notice was duly served on Smt. Aparna Phumra on 30.12.2010 itself and, therefore, according to the Ld. CIT(A) the assessee misled the department by showing the receipt date of demand notice and order on or about 20.12.2012. So, since the appeal is delayed by 701 days, and there was no sufficient cause for filing the appeal in time, the delay was not condoned and he wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took our attention to page 7 & 8 of the paper book. These facts were brought to our notice in order to show that Smt. Aparna Phumra has nothing to do with the assessee firm from 01.04.2004 onwards. We note that the AO in the 147/144 order dt. 24.12.2010 has only stated that the 148 notice was served upon the assessee firm (M/s B.K. Agencies) by affixture on 15.04.2009. It is well settled that notice u/s 148 has to be issued to the assessee before usurping the jurisdiction to re-open and re-assesss the assessment completed u/s 143(3). Here we find that 148 notice has been said to have been affixed by the AO on 16.04.2009. However, before the affixture of notice is resorted to, the AO has to clearly bring out the facts as to whether notices s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .K. Agencies got dissolved on 01.04.2004 because there were only two partners in the firm and Smt. Aparna Phumra one of the partners has retired from the partnership, so, therefore, in the eyes of law the assessee partnership firm stands dissolved. Therefore, the service of notice itself to an assessee who is no more partnership firm and the assessment framed thereafter is null in the eyes of law. So, in the peculiar circumstance of the case, on both these counts aforestated the order impugned is void in the eyes of law and, therefore, we quash the impugned order dt. 24.12.2010. I.T.A. No. 2552 is against penalty-imposed consequent to passing of the impugned order dt. 24.12.2010 and taking note of the quantum added against the assessee. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
