2012 (5) TMI 71 - HC - Income Tax

High Court favors assessee in assessment case, stresses procedural compliance & necessity of fresh notice

GUTTA ANJANEYULU & CO Versus COMMISSIONER OF INCOME TAX

The High Court ruled in favor of the assessee, emphasizing the necessity of setting aside the assessment proceedings and granting liberty to the Revenue ... Reassessment - Whether serving a fresh notice is necessary for the purpose of making an assessment on the body of individuals where an assessment was reopened in the status of association of persons - that initially an assessment was completed on 28.02.1975 in respect of the assessee in the status of AOP comprising 18 persons in the name of 'Gutta Anjaneyulu & Co - The matter was then again reopened by the ITO by issuing a notice under Section 148 of the Act after obtaining the approval of the CBDT - Full Bench of this Court in PANNABAI v. COMMISSIONER OF INCOME-TAX (1985 -TMI - 27526 - ANDHRA PRADESH High Court) - Held that: it is quire clear, after applying the law laid down by the Full Bench that for modifying the status of the AOP consisting of 3 persons to a BOI consisting of 2 persons, that the CIT could not have acted on his own - there is no doubt that the order passed by the CIT which was upheld by the Tribunal whereby the status of the assessee was 'merely' modified from AOP to BOI is not sustainable This notice can be issued only after obtaining the approval of the CBDT since more than 35 years have gone by from the date of the original assessment made on 28.02.1975 - Decided in favor of the assessee by way of remand to AO Issues:1. Interpretation of Section 148 of the Income Tax Act regarding the burden of proof on notice service.2. Validity of re-assessment proceedings without proper notice service.3. Necessity of a fresh notice for assessment in altered status and approval by the Central Board of Direct Taxes (CBDT).Issue 1:The first substantial question of law in this case pertains to the interpretation of Section 148 of the Income Tax Act, specifically regarding the burden of proof on notice service. The Tribunal's approach was questioned, debating whether the assessee needed to prove the non-service of notice under Sec.148 or if the department had to prove the negative. The High Court analyzed this issue in light of legal conformity.Issue 2:The second issue revolves around the validity of re-assessment proceedings conducted without proper service of notice on the assessee. The case history revealed instances where assessments were made without adequate notice or in incorrect statuses, leading to appeals and modifications. The High Court scrutinized whether the re-assessment proceedings in this case were concluded without proper notice service, assessing the legal implications and procedural correctness.Issue 3:The final issue concerns the necessity of issuing a fresh notice for assessment in an altered status, specifically in the context of a body of individuals where an assessment was reopened in the status of an association of persons. Additionally, the requirement for such a notice to be approved by the Central Board of Direct Taxes (CBDT) before issuance was deliberated upon. The High Court examined the legal requirements and procedural adherence in altering the status for assessment purposes.The judgment delves into the detailed case history, starting with the initial assessment of the assessee as an Association Of Persons (AOP) and subsequent challenges regarding the entity's status. Various appeals and modifications led to re-assessments in different statuses, ultimately raising questions about the correctness of the assessment procedures followed. The High Court referred to relevant legal precedents, such as a Full Bench decision and a Supreme Court ruling, to establish the correct course of action in modifying the status of the assessee for assessment purposes.Ultimately, the High Court ruled in favor of the assessee, emphasizing the necessity of setting aside the assessment proceedings and granting liberty to the Revenue to issue a fresh notice in accordance with the law. The judgment highlighted the importance of procedural compliance, especially in cases where the status of the assessee is subject to modification. The decision underscored the significance of obtaining approval from the CBDT for issuing a fresh notice after a significant period had elapsed from the original assessment date. The matter was remanded to the Assessing Officer for further appropriate steps, emphasizing adherence to legal procedures and due process.