- (1.) This appeal under Section 260A of the Income-tax ("Act"), 1961 is at the instance of an Assessee, represented by two of its erstwhile partners, and is directed against an order dated December 17, 2003 passed by the Income-tax Appellate Tribunal, "A" Bench, Kolkata in Income-tax (SS) Appeal No. 34 (Kol) of 1998 for the Block Period 1987-88 to 1996-97 up to 2nd July, 1996.
(2.) Being dissatisfied, two of the partners of the erstwhile partnership firm, the assesse, have come up with the present appeal.
(3.) The facts giving rise to filing of this appeal may be summed up thus: a) In course of search on July 2, 1996 in the residential premises of one Bijay Kumr Gutgutia, some papers relating to the firm, M/s. Shree Krishna Arvind Hatcheries, along with other books of accounts and a bunch of papers with identification mark BKG/5 were seized. There were some entries which related to the firm M/s. Shree Krishna Arvind Hatcheires indicating that the firm had undisclosed income for the Assessment Year 1990-91. b) Proceedings under Section 158BB were drawn up and notice under Section 158C was issued on January 22, 1997 asking the firm to furnish the return for the block period. c) No return was filed as it was contended that the erstwhile firm was taken over by the newly floated company with effect from July 31, 1990 by virtue of a deed executed on July 21, 1990 and the firm discontinued its activities. d) The Assessing Officer proceeded to make the assessment under Section 158BC by holding that by virtue of Section 189(1) where any business or profession carried on by a firm had been discontinued or where the firm was dissolved, the Assessing Officer should frame the assessment on the total income of the firm as if no such discontinuance or dissolution had taken place. e) From the seized bunch of papers, it was found that the Assessee firm had earned actual profit of Rs. 14.19 lac during the accounting period relating to the Assessment Year 1990-91 whereas in the books Rs. 8.87 lac was declared. f) In the deposition under Section 132(4) on 29th August, 1996 Sri Bijay Kumar Gutgutia, a partner of the erstwhile firm, had confirmed the actual income of the firm vis-?-vis the disclosed income. g) Sri H.C. Poddar, husband of Smt. Gayatri Poddar another partner, also confirmed in his deposition under Section 132(4) on 26th August, 1996 the undisclosed income of the firm for the Assessment Year 1990-91 on the basis of the information noted in the seized papers. h) It may not out of place to mention here that no return was filed by the dissolved firm and the notice under Section 158BC read with Section 158BD and Section 189(1) was issued to all the partners of the dissolved firm on June 6, 1997 asking them to give the return for the block period in respect of the firm of which they were partners. But in spite of that no return was filed by any of the partners. Subsequently, a show cause notice was issued to all the partners asking them why an order as per best judgment assessment should not be passed on the basis of the materials gathered at the instance of the Assessing Officer and a notice under Section 142(1) was issued. i) In the absence of compliance to the notice issued under Section 158BC read with Section 159BD of the Act and in the absence of any compliance to the show cause notice issued along with notice under Section 142(1), the Assessing Officer proceeded to complete the assessment as per best judgment assessment and ultimately, reassessed the amount of tax which came to Rs. 3,76,180/-. j) Being dissatisfied, only the present Appellants, two of the partners, preferred an appeal before the Tribunal below and by the order impugned herein, the said Tribunal has affirmed the order of the Assessing Officer.;