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TMI Blog1976 (1) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Magistrate, 1st Class, was rejected by the Senior Court. The ITO took action under s. 147(a) and first made an assessment on Shri Kishore Chand in his capacity as Karat of his HUF and vide his order dt. 25th March, 1964 determined the total income of the HUF at Rs. 39,724 which, inter alia, included a sum of Rs. 20,000 being the market value of the aforesaid contraband opium. The assessee filed an appeal to the AAC against the assessment on the HUF and one of the grounds taken was that the criminal case was instituted against Shri Kishore Chand in his individual capacity and the addition, if any, could not be sustained in the hands of the HUF. The AAC accepted this contention of the assessee and set aside the assessment for bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing on 11th Oct., 1972. The assessee vide his letter dt. 11th Oct., 1972 reiterated the same contention which had been raised earlier. Without prejudice to the earlier contention, it was further submitted that the assessee never maintained any account books not did he had any bank account and as such the assessee regretted to produce the documents asked for in the notice under s. 142(1). The ITO by his letter dt. 13th Oct., 1972 informed the assessee that the notice issued under s. 148 was a valid notice. It was pointed out that the aforesaid judgment of the Supreme Court 53 ITR 100 did not help the assessee. The assessee was advised to furnish his return of income which was over due. Another letter dt. 27th Sept., 1973 accompanied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Act of 1922 whereas the notice had been challenged under the provisions of the Act of 1961. According to the ITO, s. 149 provided the time limit for the issue of the notice under s. 148 and s. 153 provided the time limit for completion of assessment and re-assessments and there was no time limit prescribed for the service of the notice under s. 148. He got local enquiries made from his Inspector regarding the business activities of the assessee and the Inspector reported the apart from getting salary of Rs. 3,000 from Kishori Lal, Sham Lal, Sunam, the assessee was indulging secretly in the business of purchase and sale of opium. The arrest of the assessee on 15th June, 1959 following the recovery of 23 seers and 4 chhatanks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (vi) (1975) 98 ITR 359, Kundan Lal Behari Lal vs. CIT The assessee also drew attention of the AAC to the order of the CIT under s. 264 dt. 29th Nov., 1974 in the case of Banarsi Lal C/o Rattan & Co. Dhuri in which, under similar circumstances, the assessment made was cancelled. In view of the aforesaid judgment, the AAC held that the assessment made was without jurisdiction. Without prejudice to the aforesaid ground, the assessee had taken another ground that the ITO erred in holding that the assessee was carrying on illegal business of purchase and sale of opinion. Without prejudice to the above contention, it was further submitted that the ITO had wrongly added Rs. 29,060 as the assessee's income from other sources. Another ground w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and void." During the course of this judgement, the High Court has considered the Supreme Court judgment is Banarsi Devi & Anr. vs. ITO the Calcutta High Court judgment in Lilooah Steel and Wire Co. Ltd. vs. ITO and the Gujarat High Court judgment in Shanabhai P. Patel vs. Upadhaya (RP, ITO which were also referred to before the AAC. In view of the aforesaid judgment, the AAC was perfectly justified in holding that the notice issued under s. 148 was without jurisdiction and void. Since the notice under s. 148 itself was void, the AAC was further justified in cancelling the assessment as being without jurisdiction. There is thus no merit in the Revenue's appeal. 4. No other point was argued at the time of hearing. 5. In the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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