TMI Blog1979 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... 975 determining the total income of Rs. 75,760. No return was filed in he asst. yr. 1974-75 although the notice under s. 139(2) of the Act was served on the assessee on 26th Aug., 1974. Similarly no return was filed in the asst. yr. 1975-76. Even a notice under s. 139(2) of the Act was refused by the assessee who was then in the Central Prison, Sabarmati, Ahmedabad. The ground given for refusing the notice for the asst. yr. 1975-76 was that the assessee was not keeping good health and was under medical treatment and would reply only after his release from jail. The ITO assessed the assessee under s. 144 of the Act for all the three years on the income of Rs. 5,58,350, Rs. 6,98,480 and Rs. 7,89,580 respectively. The assessment order for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to state as to when those folders could be made available. The AAC felt that the assessments for all the three years were not made in a proper or just manner. The assessment orders for all the three year s were set aside. The ITO was directed to make fresh assessment under sec. 144 after giving reasonable opportunity to the assessee to produce evidence relevant to the additions made by the ITO. 3. The revenue is aggrieved by the said order of the AAC. The submission of Shri C.S. Harne, the ld. Deptl. Rep. at the hearing of these appeals was that the assessee could have filed the returns for the asst. yrs. 1974-75 and 1975-76 although he was detained and could have made available the relevant material to the ITO although he was sick. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AAC against the ITO were not called for. The AAC in his order states: "on the facts and circumstances of the case, therefore I feel that the assessment for all the three year s were not made in a proper or just manner'. In the sentence immediately preceding the sentence it is stated "even the relevant books of accounts etc. are still in the custody of the ITO and the difficulty in satisfying the ITO regarding the incorrectness of the evidence by the appellant, being under detention throughout, can very well be imagined." On these facts, in our view, the AAC can feel that the assessments for all the three years were not made in a proper or just manner though it may not be necessary to express such feeling. Even on the assumption that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l gathered on the basis of any enquiry made by the ITO under s. 142(2) of the Act. The reply to this question has to be in the affirmative. In CIT Kanpur coal syndicate (1), the Supreme Court held that s. 3 of the IT Act 1922 impliedly gave an option to an appropriate authority to assess the total income either of association of persons or of the members of such association individually. The question for consideration was whether the option was given only to the ITO and was denied to the AAC and the Appl. Tribunal. The Supreme Court held that the AAC has plenary powers in disposing of an appeal and that he could do what the ITO could do. It was held that if the ITO had an option to assess one or other of the entities, in the alternative, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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