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 common order of the Tribunal for the assessment year 1993-94. The assessee though claimed the status as a registered firm in the belated return filed, such return was not accompanied by certified copy of partnership deed in terms of Section 184(2) of the I.T. Act. The assessing officer first sent intimation under Section 143(1)(a) against which assessee filed Section 154 application for grant of status of registered firm. Rectification application was rejected because certified copy of the partnership deed was furnished only after receipt of intimation under Section 143(1)(a) by the assessee. However, strangely, even though assessment was completed under Section 143(3) of the Act, the assessee's case for assigning status as registered firm was not considered by the assessing officer based on the certified copy of the 2 partnership deed already filed by the assessee. Since the first appellate authority concurred with the assessing officer, the assessee filed sepsarate appeals before the Tribunal, one against the order on application under Section 154 and the other pertaining to addition sustained in assessment. Even though we do not find any question of law arising from the order of the Tribunal pertaining to modified quantum of addition, we find some force in the contention of the assessee with regard to status assigned because of the decision of this Court in K.V. MANGARAM & CO's case, 245 I.T.R. 353 wherein a Division Bench of this Court has held that intimation under Section 143(3)(a) is not an assessment. Going by this decision, we feel the assessee is entitled to claim status as registered firm in the regular assessment proceedings under Section1 43(3) of the Act. Even though senior counsel appearing for the respondent-revenue contended that since return itself was time barred, certified copy of the partnership deed produced later need not be considered, we do not know whey then the assessing officer initiated and completed regular assessment under Section 143(3) after issuing notice under Section 143(2) instead 3 of initiating proceedings under Section 147 of the Act. Since the assessing officer has not considered the decision of this Court referred above, which has a direct bearing on the issue raised, we set aside the orders of the Tribunal and that of the lower authorities with direction to the assessing officer to reconsider the entire matter with reference to the decision of this Court referred above. We make it clear that proposal should be given about the fresh orders to be passed by the assessing officer and assessee should be given an opportunity to file written reply on the proposal and a hearing before final orders are passed. Appeals are allowed as above. (C.N.RAMACHANDRAN NAIR) Judge. (T.R.RAMACHANDRAN NAIR) Judge. kk 4