TMI Blog1983 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... lure on the part of the assessee to make a return under section 139 of the Act, its income chargeable to tax had escaped assessment for the assessment year 1969-70. The ITO, accordingly, sought approval of the Commissioner in the status of an AOP. A notice under section 148 of the Act was subsequently issued to the assessee on 26-2-1977 which was served on 18-3-1977. This notice did not give the status. On receipt of the notice, the assessee wrote to the ITO that it was not clear in which status the return was required to be filed. The assessee also requested the ITO to communicate the status for submission of the return. In the meantime his permission was sought for extension of the date of the filing of return. This letter was written to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, it was submitted before us that since the return was filed in the status of a firm, making of an assessment in the status of an AOP on the basis of that return was incorrect and, therefore, also apart from the reasons given by the Commissioner (Appeals) the assessment could not survive. 5. We have carefully considered the submissions placed before us. The Allahabad High Court in the recent case in CWT v. J. K. Srivastava Sons [1983] 142 ITR 183 has held that a return filed in the status of an AOP could not be treated as a return in the status of an individual and, therefore, the cancellation of the assessment by the Tribunal, made in the status of an individual, was justified. In this case, the assessee had filed its wealth-tax ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ex parte order, which was set aside, was assessment made on 'S' in the status of an individual and that there was no assessment against the family. The assessment made against the family was not, therefore, an assessment under section 27. That assessment was clearly barred by time and limitation was not saved by the second proviso to section 34(3) of the 1922 Act. The Supreme Court clarified that the same person could be taxed both as an individual as well as the karta of his family. The two capacities are totally different, they are two different assessees. 6. The above principle applies to the case of the assessee also. An AOP is entirely different from a firm. Notice was issued requiring an AOP to submit the return as it was in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 144B to the IAC and it was only after receiving his instructions that the assessment had been made on 8-9-1981. Sub-section (1) of section 144B clearly states that this section will apply only to an assessment to be made under section 143(3). Sub-section (2) of section 153 of the Act states that no order of assessment, reassessment or recomputation shall be made under section 147 where it is to be made under clause (a) of that section, after the expiry of four years from the end of the assessment year in which the notice under section 148 was served. As per this provision, the assessment was required to be made by 31-3-1981. Since it was made on 8-9-1981, it is clearly barred by limitation, even if the plea of the learned dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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