RAJKUMAR JAIN Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE grievance of the petitioner in this writ petition is that while passing an order, vide Annexure -P/8 on 28.12.2006, the Assessing Officer has passed the order of assessment under section 143(3) without conducting any inquiry and deciding the application under section 171 filed by the assessee.

(2.) FACTS in brief indicate that the petitioner was subjected to assessment for the year 1969 -1970 to 1972 -1973 and finally assessment orders were passed as indicated hereinabove without deciding the application under section 171 as per law and when an application under section 264 was filed before the Commissioner the same was also dismissed on 27.03.2008 holding that no case for revision was made out. However, the facts necessary for deciding this petition go to show that when the matter was pending before the Assessing Officer the petitioner moved an application under section 171 and claimed that there has been partial partition of the family property and taking note of the same, assessment proceedings be held. Even though an order of assessment was passed, but when the matter went to the Appellate Tribunal, the Appellate Tribunal after setting aside the assessment order remanded the matter back to Assessing Officer for considering the matter afresh, thereafter when again the impugned assessment order was passed the petitioner approached the Commissioner under section 264, the same was also dismissed, therefore, this writ petition.

(3.) SHRI G.N.Purohit, learned Senior Counsel inviting our attention to the judgment of the Supreme Court in the case of Kapurchand Shrimal vs. Commissioner of Income Tax - : (1981) 24 CTR (SC) 345 argued that when an application is filed under section 171, the said provision mandates the Assessing Officer to conduct a detailed inquiry into the fact as to whether the partition of the family property has been affected and it is only after conducting a proper inquiry into the matter that the assessment order passed. Shri Purohit pointed out that when the matter was considered in the case of Kapurchand (supra) the unamended provision under section 25 -A which is in pari materia with section 171 was taken note of. It is said that the application under section 171 has not been considered in accordance to the requirement of law, no inquiry into the matter of family partition has been conducted before the assessment order was passed. In absence of such an inquiry it is said that there is error apparent on the face of record.