TaxTMI 
TaxTMI 
2018 (4) TMI 252
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....essee Shri Sabyasachi Pradhan. As the facts and issues in all the appeals are common in all the assessment years as the CIT(A)'s order are identical for the sake of convenience they are heard together and disposed of by this common order. 2. The facts of the case are at page-2 of the ld. CIT(A) which is extracted for ready reference :- The assessee formed a partnership Firm along with two other persons - Sri Sabyasachi Pradhan and Sri Girish Chandra Rout under the trade name M/s. Hotel Sea Weed' having its PAN: AADFH9221R (i.e., the Seller Firm). They had their own landed properties adjacent to each other which were given to the common asset basket of the Firm. The said Firm thereafter took loans from M/s. Balageria Central ....
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....was made on 31.03.2014 on Nil income. The assessment proceedings of the appellant, Sri Partha Sarathi Das, for the assessment year 2009-2010 was pending before AO. During such assessment proceedings, the appellant was asked to clarify the chargeability of capital gains for sale of the impugned immovable property as per the AIR information and the appellant clarified that he had not sold the property rather the seller firm of which he is a partner had sold such properties. Such assessment u/s. 143(3) was completed on 29.11.2011. Having received such information during the assessment proceedings of the appellant as well as from the AIR information for property transaction with respect to sale of property, the AO had issued notice u/s. 148 of ....
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....ined and unproven. The primary onus to explain this is upon you that you have failed to discharge. Therefore, the value is considered to be the book value of the hotel as found to have been recorded at Rs. 37,11,512/- (WDV) as on 31.03.2008 in the books of a firm viz. M/s. Hotel Sea Weed to which you are partners. You have not shown any capital gain as per the provision u/s. 50 of the I. T. Act, 1961 for the said gain of Rs. 1,23,05,770/- (Rs. 1,60,17,282/-) accrued to you by way . of transfer of the said immovable property through your individual capacity. Whereas no agreement relating to the sharing of the said gain is furnished in support of your claim in your return of income, it is hardly possible to ascertain the ver....
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....ongly initiated proceedings to assess the impugned capital gains in the hands of the assessee, in his individual capacity and not in the hands of the "seller firm" having PAN: AADFH 9221R. 4. He held that each assessee shall be assessed only in respect of this income and that a partnership firm is clearly a separate and distinct assessable entity, different from its individual partners and that income of the partnership firm has to be assessed in its hands only. He referred to section 189 of the Act and held, that even if the business of the firm is discontinued, the AO shall have to make the assessment on the firm, as if no discontinuance has taken place. He held that notice issued u/s 148 of the Act to the partners of the firm is non-e....
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....ied on the documents and submitted that nowhere was it mentioned in the registered documents that these individuals were selling the property in question on behalf of the firm. He pointed out that the seller partnership firm bearing PAN AADFH 9221R has not filed its return of income nor paid tax on the same. Alternatively he submitted that the tribunal should direct the department to assess the seller firm . 7. The ld. Counsel for the assessee, on the other hand, filed a paper book and pointed out that the AO was very much aware that the asset in question belong to the partnership firm. He filed copies of the reasons recorded for issuing of notice, u/s 148 of the Act to the seller firm M/s. M/s. Hotel Sea Weed and submitted that, it was ....
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.... as at 31.03.2008 that w.d.v. of fixed assets as on 31.03.2008 was of Rs. 37,11,512/-. So, there must be short term capital gain. I have therefore reason to believe that the income chargeable to tax has escaped assessment. Issued notice u/s 148 of the I.T.Act, 1961." 10. Notice u/s 148 of the Act was issued to the purchaser firm M/s. Hotel Sea Weed on 31.07.2012 . Notice was also issued on 31.07.2012u/s 148 of the Act to Shri Girish Chandra Rout, who is the respondent before me and a partner of the seller firm The AO had taken the cost of the asset as the WDV in the books of the seller partnership firm. Thus it is clear that the AO, prior to framing assessments on the purchaser firm and prior to framing assessments on t....