Ita/217/2002 Of M/S.murugesh & Company, Kollam v. The Commissioner Of Income Tax, Tvm

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 ITA.No. 217 of 2002() --------------------- ITA.398/COCH/1998 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/ASSESSEE ----------------------------------- M/S.MURUGESH & COMPANY, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER SHRI.V.MOHAN KUMAR BY ADV. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN RESPONDENTS: RESPONDENT/REVENUE ------------------------------- THE COMMISSIONER OF INCOME-TAX, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE K. GEORGE, SC FOR IT THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, ALONG WITH ITA 239/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR &T.R. RAMACHANDRAN NAIR, JJ. -------------------------------------------- I.T.A. No. 217 & 239 OF 2002 -------------------------------------------- Dated this the 28th day of February, 2008 JUDGMENT C.N. Ramachandran Nair,J. These two appeals filed by the assessee arise from the commonorder of the Tribunal for the assessment year 1993-94. The assesseethough claimed the status as a registered firm in the belated return filed,such return was not accompanied by certified copy of partnership deedin terms of Section 184(2) of the I.T. Act. The assessing officer firstsent intimation under Section 143(1)(a) against which assessee filedSection 154 application for grant of status of registered firm.Rectification application was rejected because certified copy of thepartnership deed was furnished only after receipt of intimation underSection 143(1)(a) by the assessee. However, strangely, even thoughassessment was completed under Section 143(3) of the Act, theassessee's case for assigning status as registered firm was notconsidered by the assessing officer based on the certified copy of the partnership deed already filed by the assessee. Since the first appellateauthority concurred with the assessing officer, the assessee filedsepsarate appeals before the Tribunal, one against the order onapplication under Section 154 and the other pertaining to additionsustained in assessment. Even though we do not find any question oflaw arising from the order of the Tribunal pertaining to modifiedquantum of addition, we find some force in the contention of theassessee with regard to status assigned because of the decision of thisCourt in K.V. MANGARAM & CO's case, 245 I.T.R. 353 wherein aDivision Bench of this Court has held that intimation under Section143(3)(a) is not an assessment. Going by this decision, we feel theassessee is entitled to claim status as registered firm in the regularassessment proceedings under Section1 43(3) of the Act. Even thoughsenior counsel appearing for the respondent-revenue contended thatsince return itself was time barred, certified copy of the partnershipdeed produced later need not be considered, we do not know wheythen the assessing officer initiated and completed regular assessmentunder Section 143(3) after issuing notice under Section 143(2) instead of initiating proceedings under Section 147 of the Act. Since theassessing officer has not considered the decision of this Court referredabove, which has a direct bearing on the issue raised, we set aside theorders of the Tribunal and that of the lower authorities with direction tothe assessing officer to reconsider the entire matter with reference tothe decision of this Court referred above. We make it clear thatproposal should be given about the fresh orders to be passed by theassessing officer and assessee should be given an opportunity to filewritten reply on the proposal and a hearing before final orders arepassed. Appeals are allowed as above. (C.N.RAMACHANDRAN NAIR)Judge.Judge. (T.R.RAMACHANDRAN NAIR) Judge. kk