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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV & SHRI A.K. GARODIA
Date of hearing : 01.12.2016 Date of Pronouncement : 06.01.2017 O R D E R Per Sunil Kumar Yadav, Judicial Member
These appeals are preferred by different assessees against the respective orders of the CIT(Appeals). Since these appeals were heard together, these are being disposed of through this consolidated order. We, however, prefer to adjudicate them one after the other.
These appeals are preferred by the assessee firm against the respective orders of the CIT(Appeals). In the assessee has taken grounds with regard to validity of the assessment framed u/s. 153C r.w.s. 143(3) of the Income Tax Act, 1961 [the Act] on the ground of valid service of notice of hearing, but during the course of hearing, the ld. counsel for the assessee has opted not to press ground Nos.1, 2(A), 2(B) & 2(C) relating to this issue. Accordingly, this issue is dismissed being not pressed.
The other grounds in and the grounds in ITA No.1546/Bang/2010 are common and it relates to assessment framed in the status of AOP only for the simple reason that the registered partnership deed was not filed along with the return of income. The order of AO was confirmed by the CIT(Appeals) without looking to the fact that the registered partnership deed was filed during the course of assessment proceedings before the AO.
The ld. counsel for the assessee contended that the AO ought to have examined the partnership deed and framed the assessment in the status of firm having relied upon the partnership deed. The ld. counsel further placed reliance upon the judgment of Hon’ble jurisdictional High Court in the case of M/s. Janardhan & Associates in in which it has been held that partnership deed can also be filed during the & 1546 and 1557 & 1558/Bang/2010 Page 3 of 5 course of assessment proceedings and accordingly they answered the question i.e., "Whether the Tribunal was correct in directing the Assessing Officer to examine the certified copy of the partnership deed which filed subsequently and to treat the assessee as a firm by ignoring the mandatory provisions of section 184(2) of the Act", in the affirmative and in favour of the assessee. The relevant observations of the jurisdictional High Court are extracted hereunder for the sake of reference:-
“2. The appeal was admitted to consider the following substantial question of law. "Whether the Tribunal was correct in directing the Assessing Officer to examine the certified copy of the partnership deed which filed subsequently and to treat the assessee as a firm by ignoring the mandatory provisions of section 184(2) of the Act."
3. Similar question has been answered by the Division Bench of this court in the case of COMMISSIONER OF INCOME TAX AND ANOTHER v/s ACE MULTITAXES PVT LTD., against the Revenue and in favour of the Assessee. Following the same, the appeal is dismissed.”
Since it has been held by the Hon’ble jurisdictional High Court that once the partnership deed is filed during the course of assessment proceedings, subsequent to the filing of the return, it meets the requirement of law and it has to be examined by the AO while completing the assessment in the status of firm, we are, therefore, of the view that the AO should have examined the partnership deed filed during the course of assessment proceedings and framed proper assessment in the status of registered firm. We accordingly set aside the order of CIT(Appeals) and direct the AO to examine the certified copy of the partnership deed filed during the course of assessment proceedings and if he finds the partnership firm to be genuine, the assessment be framed in the status of firm.
Accordingly, the appeals filed by the assesse in & 1546/Bang/2010 stands allowed for statistical purposes.
The other appeals i.e., & 1558/Bang/2010 are filed by the partner of the aforesaid firm and since the assessment in the hands of partnership firm is to be framed afresh in the light of directions given hereinabove, the assessment has to be framed afresh in the hands of partner also. Accordingly, we set aside the order of CIT(Appeals) in these appeals and restore the matter to the Assessing Officer to frame the assessment afresh in the hands of partner, after taking into account the assessment framed in the hands of partnership firm.
Accordingly the appeals filed by the assessees stand allowed for statistical purposes. & 1546 and 1557 & 1558/Bang/2010 Page 5 of 5 9. In the result, all the appeals filed by the assessees are allowed for statistical purposes.
Pronounced in the open court on this 06th day of January, 2017.