TMI Blog1995 (3) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000 on account of sale of gold dust. 2. The first and second grounds relate to cancellation of the assessment order made under section 148 by the CIT (Appeals) by admitting the additional ground of appeal without giving reasonable opportunity to the Assessing Officer (AO). 3. Briefly stated, the facts of this case are that the assessee, a registered goldsmith died on 8-8-1987 and the return was filed on 13-8-1987 by the legal representative of the assessee Sri Abhijit Dutta and against the name of the assessee it was mentioned, " Manindra Nath Dutta (since deceased) ". Notices under sections 143(2) and 142(1) were issued but since there is no compliance according to the AO he passed the assessment order under section 144 and assessed the total income at Rs. 2,67,500 including the value of 500 gr. of imprest gold at Rs. 1,22,500 and on account of sale of gold dust for want of explanation at Rs. 20,000. Being aggrieved by the order of the AO the legal representative preferred an appeal to the CIT (Appeals). 4. Before the CIT(A), although 13 grounds had already been raised in the original appeals, the assessee filed an additional ground of appeal that Sri Manindra Nath Dutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rase, " legal representative " was not written in the assessment order and in notices the assessment order cannot be declared to be null and void in view of the provisions envisaged under section 292B of the IT Act, 1961. According to the learned D.R. the CIT(A) should have set aside the assessment for making the same de novo. In order to support his contention the learned D.R. placed reliance on the decision of the Calcutta High Court in the case of CIT v. Anand Co. [1994] 207 ITR 418. 7. The learned counsel for the assessee on the other hand repeated the same arguments as were put forth before the CIT(A) and submitted that the CIT(A) was justified in cancelling the assessment as it was made on Sri M.N. Dutta and notices were also issued to him and not to the legal representative. 8. We have carefully considered the rival contentions, the relevant facts and material placed on the record. We find that the CIT(A) has not decided the important grounds of appeal Nos. 2 3 regarding best judgment assessment under section 144 in spite of the facts that the assessee's representative appeared before the AO on the following dates as it is evident from the statement of facts filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 159, his order cannot be sustained in the eyes of law on merit as well. 11. It appears that the CIT(A) has also completely missed the provisions of section 292B wherein it is very clearly mentioned that no assessment, no notice, no return of income, summons or other proceedings furnished or made or issued or taken or purported to have been furnished or made or issued or taken, shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceedings if such return of income, assessment notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. In view of this provision of section 292B the mistake, defect or omission in the assessment or in the notices, cannot render the assessment and notices to be invalid by reason of the mistake, defect or omission that the name of the legal representative was not written or mentioned. In this view of the matter also the CIT(A) could not have declared the assessment and notices to be invalid and could not have legally cancelled the assessment order. 12. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Haryana High Court. Similar and identical are the facts and circumstances of the instant case and, therefore, the present case is fully and squarely covered by the decision of the Punjab Haryana High Court in the case of Swaran Kanta. 14. Considering all the facts and circumstances of the case and for the reasons mentioned above, we hold that the CIT(A) was not justified in admitting additional ground and in cancelling the assessment order on the ground that the assessment order passed by the AO on Sri M.N. Dutta is bad in the eyes of law and that the AO has not issued notices to the legal heir of the deceased. In view of this, the order of the CIT(A) to that extent is vacated and the assessment order is restored. Thus, ground Nos. 1 2 of the department succeed. 15. Grounds 3 4 relate to the deletion of addition of Rs. 1,22,500 made under section 69B and deletion of Rs. 20,000 on account of sale of gold dust respectively. The AO found that although the assessee has disclosed the income from making charges received from re-making of gold ornaments, imprest gold as required for running the business has not been accounted for in the accounts filed along with the return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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