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N.L. DASH, J.M.

1. This batch of appeals preferred by the assessee, is directed against different orders of the CIT(A) for the asst. yrs. 1981-82 to 1986-87.

2. The facts of the case in brief are that the assessee is an evangelist and has been carrying on the vocation of preaching Christianity on behalf of the Church of Christ abroad i.e., United States of America and Canada, and has been receiving money from them with an intention for propagation of Christianity in India. The nature of service rendered by the assessee is to execute the instruction of foreign churches in spending the money received from abroad on various activities in India and rendering monthly statements of accounts to the foreign employer. For such service, the assessee has been paid separate remuneration. The assessee was accordingly filing his returns of income in his individual status since the asst. yr. 1972-73 onwards offering his remuneration under the head "Income from salary" and being assessed accordingly for all the years. Remittances from the abroad used to be spent on religious purposes as per their direction were being shown in Part III of the return of income since the said fund did not belong to him. The assessments were originally completed on 8th March, 1984, again reassessed on 23rd March, 1987, pursuant to the direction of the first appellate authority in first appeal preferred by the assessee dt., 17th Jan., 1985, 31st March, 1986, 28th Jan., 1987, 31st March 1987 and 31st March ,1987, for the asst. yrs. 1981-82, 1982-83, 1983-84, 1984-85, 1985-86 and 1986-87, respectively, holding the status of the assessee as 'Individual'. Thereafter, after a long lapse of time, it was on 31st March, 1992, notices under Section 148 were issued as observed in the first appeal order dt. 30th March, 1995, for asst. yrs. 1982-83 to 1986-87, on the basis of observations of the Dy. CIT (Audit), Hyderabad, dt. 28th June, 1988, to assess the escaped income of the oral trust. The notices so issued under Section 148 to the assessee for all the assessment years in question were without mentioning therein the status but the status was subsequently clarified by the AO vide his letter dt. 24th Dec., 1993, to be 'oral trust in reply to the assessee's letter dt. 20th Dec., 1993. The assessee vide his letter dt. 5th Jan., 1994, addressed to the AO though protested to be assessed as 'oral trust' because he claimed not to be a trustee, filed "NIL" returns. The. AO completed the assessments holding the status of the assessee as "oral trust" and brought into the total income the amounts received by the assessee from abroad as reported in Part III of the returns, the income shown as remuneration and also the amount of interest on FDRs. He did not allow any deduction under Section 80C or 80L since, according to him, the status of the assessee was determined as that of representative assessee. Against such assessments, the assessee preferred appeals before the learned CIT(A) mainly on the ground of unjustified issuance of notice under Section 148, denial of liability to be taxed in the status of oral trust, but having not met with success and since the learned CIT(A) remanded back the cases to the AO to re-examine the issues at length in the light of his observations in the first appellate order, has now preferred the present second appeals under consideration.

3. The learned counsel for the assessee firstly challenged the validity of the assessment proceedings, the notices under Section 148 having been issued beyond the period of limitation and also those suffer with uncertainty and ambiguity. In support of such challenge, he contended before us that for the asst. yrs. 1981-82 to 1986-87, the notices originally issued were on 31st March, 1992, without mentioning therein the status of the assessee but on approach by the assessee, the status was subsequently clarified by the AO to be 'oral trust' vide letter dt. 24th Dec., 1993. Therefore, in the eye of law, the notices are not valid and so the consequent proceedings made pursuant to such invalid notices are liable to be quashed. In this connection, he further submitted before us that the assessments have been reopened by issue of notices under Section 148. Much prior to the issue of such notices, the assessee was already assessed in his individual capacity. Therefore, when reassessment notices have been issued it is assumed that the notices issued are in the same capacity in which he was assessed earlier. If the AO intends to reopen the assessments of the assessee in a status different from the status in which he was already assessed, it was incumbent on his part to indicate the status in which the notices are issued. When the status was not indicated in the notices itself, the omission to do so certainly renders the notices as illegal and invalid. And in such factual aspects of the case subsequent clarification as to the status cannot validate the invalid notices and, therefore, the assessments passed pursuant to such invalid notices are liable to be quashed. In support of such contention/submission, the learned counsel for the assessee placed much reliance on several decisions of different High Courts on the issue, which will be discussed later on in his this. The learned Departmental Representative, on the other hand, contended that the status of the assessee having been subsequently clarified by the AO, the notices in question could not be said to be invalid, particularly when the assessee had acted upon in pursuance to such notices and participated in the proceedings.

This was a passage which the Hon'ble Judges of Calcutta High Court extracted from the decision of the Bombay High Court and the Hon'ble Judges referred to the same with approval. In the present case as already noticed earlier, the assessee has already been assessed in his individual capacity and so, if the Department sought to assess him: in the status of 'oral trust' the status should have been mentioned in the notice itself. Without mentioning the status in the notice itself, the said notice cannot be taken advantage to start proceedings under Section 148 against the 'oral trust'. Therefore, the assessments for all the years under consideration made pursuant to such invalid notice, in our considered view, must be quashed and those are quashed.

6. While parting with the case, we feel it necessary to observe here that while arguing the case the learned authorised representative of the assessee also challenged the service of notice on the ground that no fund was raised inside the country nor there was any intention to create any fund in future for the trust. The trust was solely created by one individual from foreign country as the mission was an evangelic mission i.e., propagation of Christianity. Hence, the Revenue cannot question as to the source of funds and its expenditure. In this connection, he invited our attention to some of the decisions harping on the point as to the status and according to him the status of this particular trust does not come within the ambit of seven categories of persons as enumerated in Section 2(31) of the IT Act. According to the said section the word 'person' includes an individual, a HUF, a company, a firm and an AOP or a BOI, whether incorporated or not, a local authority and every artificial juridical person not falling within any of the preceding clauses. According to the learned authorised representative of the assessee when oral trust is not coming within the purview of the above defined section, the service of notice on the assessee is illegal. Since, we have already vacated the assessments for the years under consideration on the ground of non-service of valid notice, we feel the questions as to determination of the status of the assessee and its taxability or otherwise becomes academic.