9911796707
TMI Blog1983 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... sis that the assessee had 30% share therein. 3. The ld. CIT issued a notice dt. 8th September, 1982 to the assessee u/s 263(1) of the Act to the effect that the assessment order passed by the ITO was erroneous insofar as it was prejudicial to the interest of revenue. "CHOONKI ALOK SADAN GRAH SAMPATTIKA PURNARUPEN SWAMITTVA SMT. SATYA GUPTA KE SANRAKSHAN MEIN HAI ATAH GRAH SAMPATTIKA NIRDHARAN NIRDHARITI (SMT. SATYA GUPTA) KI AI MEIN PARI HONA THA JO UNKI AINIRDHARAN MEIN POORI NAIHAIN ANKI GAYI JO AIKAR ADHINIYAM KE PRATIKUL HAI AUR ANYAYIK HAI." The assessee was called by the ld. CIT to his office for giving her a hearing. Thereafter, the ld. CIT held that the assessment order passed by the ITO was erroneous and also prejudicial to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 983) 35 CTR (Pat) 304 : (1983) 142 ITR 778 (Pat). 5. On the other hand, the ld. departmental representative submitted that it was not a case of wrong assumption of jurisdiction at all and that u/s 263, there was no requirement of a statutory notice and that all that the assessee was entitled to, was an opportunity of hearing which had been duly afforded to the assessee in the present case. He relied upon the following decisions : (i) Gee Vee Enterprises vs. Addl.CIT & Ors. 1975 CTR (Del) 61 : (1975) 99 ITR 375 (Del), (ii) Addl. CIT vs. Saraya Distillery 1978 CTR (All) 382 : (1978) 115 ITR 34 (All), (iii) V. Raju vs. CIT (1983) 36 CTR (Mad) 17. In the alternative, Shri Sheo Prasad submitted that even if the opportunity of hearing affor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of CIT vs. National Taj Traders (1980) 14 CTR (SC) 348 : (1980) 121 ITR 535 (SC) and in Kapur Chand Shrimal vs. CIT (1981) 24 CTR (SC) 345 : (1981) 131 ITR 451 (SC) had held that in the case of an order which has been passed by the CIT without following the statutory procedure or the principles of natural justice, the Tribunal can set aside that order with a direction to the CIT to pass a fresh order after giving reasonable opportunity to the assessee. This is very thing which was sought to be hinted by the ld. department representative when he referred to the decisions of the Hon'ble Supreme Court in the case of Guduthur Brothers. In the case of J.P. Srivastava and sons,the Hon'ble Allahabad High Court had held that the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 263(1) had been satisfied. We have gone through the notice as well as the assessee's reply thereto and we are of the view that on the basis of the material on the record it could not be said that the assessee had an adequate opportunity of hearing with reference to the property "Akash Deep" which was the subject-matter of the assessment. In view of the decisions of the Supreme Court referred to above therefore, we are of the view that the order passed by the ld. CIT should be set aside and that the ld. CIT should be directed to pass a fresh order in accordance with law after giving a reasonable opportunity to the assessee with reference to the assessee's share in the house property "Akash Deep". We hold accordingly. 7. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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