TMI Blog1996 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... d referred the undernoted questions of law arising out of the order dated October 26, 1984, passed by the Tribunal in I. T. A. No. 10/Ind. of 1983 for the assessment year 1975-76 : " (i) Whether, on the facts and in the circumstances of the case, the Income-tax Officer had jurisdiction to reopen the assessment under section 147(a) of the Income-tax Act, 1961 ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the assessee, being a Hindu undivided family, could not receive gifts ? " The facts lie in a narrow compass. For the assessment year 1975-76 (previous year ending Diwali, 1974), the assessee was originally assessed in the status of a Hindu undivided family under section 143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 254(2) of the Act was filed for any rectification. The appeal was dismissed. The assessee then filed an application under section 256(1) of the Act in which no question regarding the initiation of proceedings under section 147(a) was proposed. The application was rejected. The assessee then filed an application under section 256(2) of the Act which was registered in this court as Miscellaneous Civil Case No. 174 of 1985. That was disposed of on August 2, 1988, directing the Tribunal to state the case and refer the aforesaid questions for consideration. In compliance, the Tribunal has referred the aforesaid questions. We have heard Shri P. M. Choudhary, learned counsel for the applicant/ assessee, and Shri A. M. Mathur, learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the assessee to fully and truly disclose all the material facts necessary for the assessment. Both the conditions are conditions precedent to the exercise of the jurisdiction under section 147(a) read with section 148. The assessee stated before making assessment, that the income was received before March 31, 1956, financial year ending on by which date section 12B of the Indian Income-tax Act, 1922, making capital gains exigible to tax had not come into force. Accepting this, the sum in question was excluded from the consideration of the assessment. The subsequent information in the possession of the Income-tax Officer disclosed that the assets were transferred on a date by which date section 12B came into force. The notice did not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has placed reliance on Pushpa Devi v. CIT [1977] 109 ITR 730 (SC). It appears from the statement of the case that the aforesaid question was decided adverse to the assessee on the ground that the assessee did not name the persons who have made such gifts. Counsel submits that this conclusion was perverse in that the names and particulars were available in annexure " F ". In view of the conflict with annexure " F ", we find that the Tribunal was required to examine the genuineness of the contention as regards gifts rather than slipping under the umbrella that the Hindu undivided family could not receive the gifts at all. In view of the aforesaid position, we answer the questions as under : (a) Question No. (i) is answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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