When fresh assessment proceedings were companymenced pursuant to the above said direction in respect of the assessment year 1955 56,, the assessment proceedings for the assessment years 1957 58 and 1958 59 were also taken up.
In the appeals filed before the Appellate Assistant Commissioner against the assessment orders for the years in question i.e. 1955 56 and 1957 58 to 1961 62 it was companytended that the assessments were liable to be set aside on the ground that the inquiry into the claim of partition which was a companydition precedent for making an order of assessment on the Hindu undivided family had number been made as required by section 25A of the Act.
Thereafter at the instance of the Revenue a reference was made by the Tribunal to the High Court of Andhra Pradesh under section 66 1 of the Act in all the cases for a decision on the following question Whether on the facts and in the circumstances of the case, the assessments made by the Income tax Officer on the Hindu undivided family of Shri Kapurchand Shrimal for the years under reference without passing an order under section 25A were valid ?
The assessee there upon filed appeals before the Tribunal against the orders of the Appellate Assistant Commissioner and one question which was A companymon to all the appeals that was urged before the Tribunal was about the validity of the assessment made against the assessee Hindu undivided family without holding an inquiry regarding the claim of partition before the assessment proceedings were companypleted.
Before the fresh assessments were companypleted for the three years referred to above a third letter dated March 11, 1962 was addressed to the same officer who received it on the next day itself in which again there was a claim made regarding the partition.
Again on June 16, 1961 M s S.G. Dastagir and Co. addressed a letter on behalf of the assessee in companynection with advance tax demanded for the assessment year 1962 63, the second para of which companytained a similar request for recording the factum of partition.
The second para of that letter companytained a specific request to record the factum of the partition for the purpose of the Act.
Earlier a letter had been addressed on October, 10, 1960 by Kapurchand Shrimal to the Income tax Officer in companynection with a numberice received by the assessee under section 18A 1 of the Act in respect of the assessment year 1961 62 stating that all the movable and immovable properties of the assessee had been partitioned by metes and bounds under partition deeds and that the Hindu undivided family the assessee was numberlonger receiving any income as such and there was therefore numberquestion of payment of any advance tax by it.
The Appellate Assistant Commissioner rejected the above companytention.
On a companysideration of the submissions made by the parties, the Tribunal came to the companyclusion that the assessments which had been made without holding an inquiry into the claim of partition as required by section 25A of the Act were illegal and void Accordingly it cancelled the assessments and added We do number companysider it necessary to direct fresh assessments.
While the assessee companytended that the assessments were liable to be cancelled on account of the number compliance with the mandatory provisions of section 25A of the Act it was urged on behalf of the Department that in fact there was numberviolation at all of section 25A and even if it was held that there was any such violation the proper order to be passed was either to direct the Income tax officer to give effect to section 25A 2 of the Act without cancelling the assessments made on the assessee or to set aside the assessments with a direction to the Income tax Officer to pass fresh orders of assessment.
Appeals by certificate from the judgment and order dated the 30th June, 1972 of the Andhra Pradesh High Court at Hyderabad in Referred Case No.
On appeal the Appellate Assistant Commissioner by his order dated November 8, 1967 set aside the said order and directed the Income tax Officer to record the partition under section 25A as on July 10, 1960.
The Income tax Officer, thereafter started an inquiry under section 25A and by his order dated March 30, 1965 refused to record the partition.
That order became final as numberappeal was filed against it by the Department.
It would be open to the Income tax Officer to do so if the law otherwise so permits.
But this letter however was written specifically in respect of the assessment year 1957 58.
5 of 1971.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
Subba Rao for the Appellant.
1286 1291 of 1973.
An assessment order made on May 30, 1959 in respect of the assessment year 1955 56 had been set aside by the Appellate Assistant Commissioner on February 24, 1962 with a direction to make a fresh assessment.
The Judgment of the Court was delivered by VENKATARAMIAH, J. The only question which arises for companysideration in these six appeals by certificate is whether an order of assessment passed under the Indian Income tax Act, 1922 hereinafter referred to as the Act by the Income tax Officer in the case of a Hindu undivided family without holding an inquiry into the validity of the claim made within a reasonable time by a member of the Hindu family that a partition had taken place among the family is liable to be merely cancelled in appeal by the Income tax Appellate Tribunal for short, the Tribunal without a further direction to the assessing authority either to modify the assessment suitably or to pass a fresh order of assessment in accordance with law.
C. Manchanda, and Miss A. Subhashini, for the Respondent.
On March 21, 1962, M s S.G. Dastagir too addressed a further letter to the Income tax Officer reminding him of the earlier letters of October 10, 1960 and June 16, 1961 and that letter stated Apart from these letters the matter has been discussed with you on a number of occasions personally during the companyrse of the assessment proceedings of the year 1957 58 and your attention has already been drawn to the facts that an order under section 25A has to be passed before the companypletion of the assessment for the year 1957 58.
The assessee is a Hindu undivided family and the assessment years are 1955 56 and 1957 58 to 1961 62.
It should be stated here that the Income tax Officer passed assessment orders against the assessee for the assessment years 1959 60, 1960 61 and 1961 62 on March 26, 1964, March 30, 1965 and March 26, 1966 respectively before the Appellate Assistant Commissioner held that the partition had taken place on July 10, 1960.
The letter dated 11th March, 1962 was addressed to you by the assessee only when it was gathered that you were going to pass the assessment order for the year 1957 58 without making the companytemplated enquiry under section 25A. The assessments for the years 1955 56 to 1958 59 were however companypleted between August 31, 1962 and March 27, 1963 without holding an inquiry as companytemplated by section 25A of the Act regarding the factum of partition.
