TaxTMI 
TaxTMI 
2012 (5) TMI 71
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.... been framed for our consideration: "1) Whether the Tribunal's approach that the assessee has to prove the non- service of notice under Sec.148 of the Act and the "department has to prove the negative", is in conformity with law? 2) Whether, on the facts and in the circumstances of the case, it can be said that the re-assessment proceedings have been concluded without service of notice on the assessee? 3) Whether on the facts and in the circumstances of the case, for the purpose of making an assessment on the body of individuals where an assessment was reopened in the status of association of persons, fresh notice u/s.148 is necessary in the altered status and whether such notice should be approved by the Central Board of Direct Taxes b....
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.... Direct Taxes (CBDT). This approval was necessary in view of the fact that more than 8 years had elapsed after the original assessment and so under the provisions of Section 151(1) of the Act as it then stood, the approval of the CBDT was necessary. 8. After the CBDT granted its approval, notice was issued by the ITO to the assessee in the status of AOP, this time comprising 3 persons. 9. Pursuant to the notice issued to the assessee an assessment order was made on 21.02.1992 in respect of the assessee as an AOP comprising of 3 persons. Feeling aggrieved, the assessee preferred an appeal before the CIT who passed an order on 25.06.1992. It is mentioned in the order of the CIT that after going through the facts of the case he would 'merely....
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....onsisting of 2 persons, that the CIT could not have acted on his own. The only option available to him was to set aside the assessment proceedings and remand the matter back to the ITO/Assessing Officer giving him the liberty of issuing a notice to the assessee in the status of a BOI comprising of two persons, if it was otherwise permissible in law and after obtaining the approval of the CBDT, if necessary. 14. Apart from the decision of the Full Bench on this subject, our attention has also been drawn to a decision of the Supreme Court in COMMISSIONER OF INCOME-TAX, ANDHRA PRADESH v. K.ADINARAYANA MURTHY 1967 65 ITR 607 (SC). That case pertained to the status of the assessee either as an individual or as a Hindu Undivided Family. While de....