1985 (2) TMI 58

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....e, therefore, made the assessment in that status. 2. The assessee appealed to the AAC. Before him, besides the evidence and the reasons advanced before the ITO, some more evidence was led to show that the correct status in which the income was earned by the assessee was that of HUF. The AAC accepted the assessee's contention and held that the status of the assessee will be that of HUF. He accordingly allowed the appeal. 3. The Department is now in appeal before us. Besides claiming that the AAC had erred in accepting the status of HUF, it is also contended before us that he had further erred in accepting fresh evidence in violation of r. 46A of IT Rues, 1962. 4. On behalf of the assessee, there were two submissions. The first was t....

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....ssment made on him in the status of an individual. There was no assessment made against the HUF was not, therefore, an assessment under s. 27. That assessment was clearly barred by time and limitation was not saved by the second proviso to s. 34(3). The same person can be taxed both as in individual as well as the Karta of his family. The two capacities are totally different. The individual and the HUF are totally different units of taxation they are two different assessee". The above principle was followed by the Allahabad High Court in the case of CWT vs. J.K. Srivastava & Sons (1983) 34 CTR (All) 319 : (1983) 142 ITR 183 (All). In this case, the assessee had filed its wealth-tax return in the status of an AOP. The WTO rejected the ....

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....ication to the provisions of the IT Act, 1961 as that decision was given with reference to the provisions of the IT Act, 1922. As a clarification, he pointed out that while no appeal had been provided in the Act of 1922 against the change of status, but that such an appeal had been provided in s. 245(1)(c) of the Act. In his opinion, therefore, the principle laid down by the Supreme Court in the above case had undergone a change. He further submitted that the decision of Allahabad High Court in J.K. Srivastava & Sons had equally no application as it related to wealth-tax and not to income-tax. In support of his contention, he referred to the decision of Rajasthan High Court in Munnilal Shivnarain Kothari vs. CIT (1984) 42 CTR (Raj) 11 : (19....