LawDistill
Supreme Court of India

COMMISSIONER OF INCOME TAX, PATIALA vs THE AMBALA FLOUR MILLS on 27 April, 1970

Cites 1 provisionsCites 0 judgmentsCited by 0
Official PDFBench Jayantilal Chhotalal Shah, Kowdoor Sadananda Hegde, Amar Nath Grover
PETITIONER:
COMMISSIONER OF INCOME TAX, PATIALA
Vs.
RESPONDENT:
THE AMBALA FLOUR MILLS
DATE OF JUDGMENT:
27/04/1970
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1972 AIR 83 1971 SCR (1) 388
1970 SCC (2) 96
ACT:
Income-tax Act, 1922, ss. 31 and 34(3) & 66-Assessment by
Income-tax Officer in status of ’association of individuals,
of which a member Appellate Assistant Commissioner directing
assessment’ to be made on family of D-Appeals by D before
Tribunal whether mintainable-D whether a stranger to
proceedings-High Court in reference whether can modify
directions given by Appellate Assistant Commissioner-
Reference to the High Court of a question not raised before
Tribunal not competent.
HEADNOTE:
D. B and J were partners in a firm which carried on the
business entitled the Ambala Flour Mills. On April 29, 1948
J filed a suit for the dissolution of the firm. The
litigation ended with the judgment of the Panjab High Court
delivered on September 25, 1951. According to the judgment
the partnership stood dissolved with, effect from the date
make such fresh assessment..........
(4) "Where as the result of an appeal,
any change in, the assessment of a firm or
association of’ persons or new assessment of a
firm or associa-
tion of persons is ordered to be made, the
Appellate Assistant Commissioner may authorise
the Income-tax Officer to amend accordingly
any assessment made on any partner of
the firm or any member of the association’.
All the returns have been filed by Debi Parshad but in dif-
ferent capacities. The Income-tax Officer was of the view
that the business was carried on by an association of
persons and the income from the business was liable to be
brought to tax on that footing. The Appellate Assistant
Commissioner was of the view that the income belonged to
Debi Parshad and he was liable to be assessed personally in
respect of the income. Evidently the Income-tax Officer
held that Debi Parsbad was a member of an association of
persons. Since the Appellate Assistant Commissioner set
aside the’ order assessing the income in’ the status of "
association of individuals", he had to give directions with
regard to the assessment of the income, provided the
assessment was not barred by the law of Limitation.
Section 34 subsection 3 prescribes for the period in which
assessment proceedings shall be completed. The section at
the date of assessment by the Income-tax Officer read as
follows:-
"No order of assessment or re-assessment,
other than an order of assessment under
section 23 to which clause (c) of sub-section
(1) of section 28 applies or an order of
assessment or reassessment in cases falling
within clause (a) of sub-section (1) or sub-
section (IA) of this Section shall be made
after the expiry of four years from the end of
the year in which the income, profits or gains
were first assessable:
Provided further that nothing contained in
this section limiting the time within which
any action may be taken. or any order,
assessment or re-assessment may be made, shall
apply to a re-assessment made under section 27
or to an assessment or re-assessment made on
the assessee or any person in consequence of
or to give effect to any finding or direction
contained in an order under section 31,
section 33, section 33A, section 33B, section
66 or section 66A".
The assessment of tax had according to the law at the rele-
vant time. in force, ordinarily, to be completed by the
Income-tax Officer within four years from the last date of
the year of assessment in which the income, was first
assessable. But to this
rule there were several exceptions. If the assessment had
to be made on the assessee or any person ’m consequence of
or to give effect to any findings or direction contained in
an order of the Appellate Assistant Commissioner or of the
Appellate Tribunal or of the Commissioner in revision or of
an order made in a reference, the assessment could be made
even after the expiry of the four years. The exception
applied to an assessment made against the assessee or any
person in consequence of, or to give effect to any finding
or direction contained in the order of any superior
tribunal, or ’the High Court or this Court. This Court in
S. C. Prashar and another v. Vasantsen Dwarkadas and
others(1) held that the second proviso to s. 34(3) of the
Incometax Act, 1922, insofar as it authorised the assessment
or reassessment of any person other than the assessee after
the expiry of the period of limitation specified in s. 34 in
consequence of or to give effect to a finding or direction
given in an appeal, revision or reference arising out of the
proceeding in relation to the assessee violated the
provisions of Art. 14 of the Constitution and was invalid to
that extent.
In a later case Income-tax Officer, Award, Sitapur v. Murli-
dhar Bhagwan Das(1) this Court explained the connotation of
the expression "any person" as used in s. 34 sub-s. (3)
proviso 2 at p. 346 :
"Theexpression ’any person’ in its widest
connotation may take in any person, whether
connected or not with theassessee, whose
income for any year has escaped assessment,
but this construction cannot be accepted, for
the said expression is necessarily circum-
scribed by the scope of the subject matter of
the appeal or revision as the case may be.
That is to say, that person must be one who
would be liable to be assessed for the whole
or a part of the income that went into the
assessment of the year under appeal or
revision. If so construed, we must turn to
section 31 to ascertain who is that person
other than the appealing assessee who can be
liable to be assessed for the income of the
said assessment years. A combined reading, of
section 30(1) and section 31(3) of the Act
indicates the cases where persons other than
the appealing assessee might be affected by
orders passed by the Appellate Commissioner.
Modification or setting aside ’of assessment
made on a firm, joint Hindu family,
association of persons, for a particular year
may affect the assessment for the said year on
a partner or partners of the firm, member or
members of the Hindu Undivided family
(1) 49 I.T.R. 1.
(1) 52 I.T.R. 335.
or the individual, as the case may be. In
such cases,. though the latter are not eo
nomine parties to the appeal, their
assessments depend upon the assessment of the
former. The said instances are only
illustrative. It is not necessary to pursue
the matter further. We would, therefore, hold
that the expression ’any person’ in the
setting in which it appears must be confined
to a person intimately connected in the
aforesaid sense with the assessments of the
year under appeal."
In Commissioner off Income-tax, U.P. v. Kanpur Coal Syndi-
cate(1) this Court held that-where the income-tax Officer
assessed the income of an association of persons under s.
31(3).(b) the Appellate Assistant Commissioner was competent
to set aside the assessment and- to direct the Income-tax
Officer to assess the members individually. The Court
observed that the Appellate Assistant Commissioner bad under
the Act plenary powers in disposing of an appeal, the scope
of his powers being conterminous with that of the Income-tax
Officer: he can do what-the Income-tax Officer can do and
can also direct the Income-tax Officer to do what he has
failed to do.
Debi Parshad had submitted the returns, and Debi Parshad,
appealed against the order of assessment. He could,- in the
circumstances of the case, not be called a stranger to the
assessment. The income earned by the assessee was assessed
to tax as income of an association of persons, of which on
the finding ,of the Income-tax Officer, Debi Parshad was a
member. In making a direction against Debi Parshad the
Tribunal did not exercise his powers qua a stranger to the
assessment proceeding. ,Civil Appeal Nos. 1280-1282 of 1966
must therefore fail.
The Appellate Assistant Commissioner had directed that the
income in the three assessment years be assessed in the
hands of the family of Debi Parshad, apparently on the view
that Debi, Parshad represented the Hindu Undivided family of
Which he was a member. The Tribunal set aside the direction
to assess the income of the Ambala Flour Mills in the hands
of Debi Parshad. personally. for in their view Debi Parshad
was a stanger to the proceeding for assessment. The High
Court held, that the ,order of the Appellate Assistant
Commissioner directing assessment of "the family of Debi
Parshad" was "clearly unwarranted and could relate only ot
Debi Parshad in his individual capacity".
Appeals Nos. 1277 to 1279 of 1966 were filed against that
part of the order of the High Court by which they sought to
,modify the order of the Appellate Assistant Commissioner.
The
(1) 53 I.T.R. 225.
High Court exercising advisory jurisdiction was incompetent
to amend the order of the Appellate Assistant Commissioner.
But on the question referred to the High Court, no inquiry
into the power of the Appellate Assistant Commissioner to
make the impugned direction was competent. The second
question only related to the assessment of the income in the
hands of Debi Parshad after annulling the assessment of the
Ambala Flour Mills. It was not contended before the
Tribunal that the income of the Ambala Flour Mills could not
be assessed in the hands of the family of Debi Parshad. The
competence of the Appellate Assistant Commissioner to make
the direction was not and could not be referred to the High
Court.
Appeals Nos. 1277 to 1279 of 1966 filed by the Commissioner
therefore fail. There will be no order as to costs in all
the appeals.
G.C. Appeals dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1277 to 1279 and 1280 to 1282 of 1966. Appeals by special leave from, the judgment and order dated ,October 14, 1966 of the Punjab High Court in Income-tax Refer ence No. 16 of 1962. B. Sen, S. K. Aiyar, B. D. Sharma and R. N. Sachthey, for the appellant (in C.As. Nos. 1277 to 1279 of 1966) and the respondent (in C.As. Nos. 1280 to 1282 of 1966). Bishan Narain and A. N. Goyal, for the respondents (in C.As. Nos. 1277 to 1279 of 1966) and the appellants (in C.As. Nos. 1280 to 1282 of 1966). The Judgment of the Court was delivered by Shah, J. Balkishan Das, Debi Prasad and Jai Ram Das were partners in a trading venture, conducted in the name of the 12 Sup. C 1/70-11 Ambala Flour Mills, Ambala. On April 29, 1948, Jai Ram Das commenced an action for dissolution and for account of the partnership business. The Trial Court decreed the suit. In appeal to the District Court, the decree was reversed. On appeal under the Letters Patent from the judgment of a single Judge, the High Court of Punjab by order dated September 26, 1951 restored the decree of the Trial Court and declared that the partnership stood dissolved on April 29, 1948. The High Court observed:

".... notwithstanding the dissolution of ’the

firm Debi, Parshad and Balkishan Dass carried

on the business of the firm with the property

of the firm. On these facts, Jairarn Dass

plaintiff is entitled at the option of himself

to such share of the profits made since he

ceased to be a Partner as may be attributable

to the use of his share of the property of the

firm or interest at the rate of six per cent

per annum on the amount of his share in the

property of the firm." During the pendency of the suit Balkishan Dass severed his connection with the business and the business was carried on thereafter by Debi Parshad alone. In the assessment year 1950-51, Debi Parshad filed three returns of income (i) on 4-10-1950 in the status of a firm, (ii) on 14-4-1951 in the status of an individual and (iii) on 1-7-1951 in the status of firm consisting of Jai Ram Das and Debi Parshad, partners. For the assessment year 195152, Debi Parshad filed a return in the status of an unregistered firm. For the assessment year 1952-53 Debi Parshad submitted a return in the status of a Hindu Undivided Family. The Income-tax Officer assessed the Ambala Flour Mills in the three years of assessment in the status of "an association of persons". In appeals by Debi Parshad, the Appellate Assistant Commissioner, "annulled" the , orders of’ assessment of the assessee in the status of association of persons be set aside and that the case be remanded to the Income-tax Officer to assess the income as "the income of the family of Debi Parshad". In appeals by Debi Parshad, the Income-tax Appellate Tribunal confirmed the orders of the Appellate Assistant Commissioner annulling the assessment made by the Income-tax Officer and directed that the direction for assessing the income in the hands of Debi Parshad be deleted. The Tribunal referred the following three questions at the instance of the Commissioner of Income-tax.

1 "Whether L. Debi Parshad was a stranger in

respect of the income-tax proceedings against

Ambala Flour Mills ?

2. Whether the Appellate Assistant

Commissioner could give a direction in the

case of Ambala Flour Mills to the effect that

the income should be assessed in the hands of

L. Debi Parshad after annulling the assessment

in the case of Ambala Flour Mills

3. Whether on the facts and in the

circumstances of the case the appeals. filed

by Shri Debi Parshad were maintainable in law The High Court answered the first question in the negative; the second in the affirmative with the rider that the assessment against Debi Parshad "could only be in individual capacity"; and the third question in the affirmative. Debi Parshad was competent to maintain the appeals filed by him to the Tribunal because by the order of the A appellate Assistant Commissioner, it was directed that he may be personally assessed by the Income-tax Officer in respect of the Income of the Ambala Flour Mills. Counsel for Debvi Parshad, however, contended that Debi Parshad was a stranger to the assessment proceedings and the, Appellate Assistant Commissioner had no jurisdiction to direct after setting aside the order of assessment that Debi Parshad be assessed personally in respect of the income of the Ambala Flour Mills. The relevant provisions of the Income Tax Act may be: noticed. The relevant provisions of s. 31 of the Income Tax Act, 1922, are these :

"In disposing of an appeal, the

Appellate Assistant Commissioner may, in the

case of an order of assessment :

(a) confirm, reduce, enhance or annual the

assessment;

(b) set aside the assessment and direct the

Income-tax Officer to make a fresh assessment

after making such further inquiry as the

Income-tax Officer thinks fit or the Appellate

Assistant Commissioner may direct, and the

Income-tax Officer shall thereupon proceed of

make such fresh assessment..........

(4) "Where as the result of an appeal,

any change in, the assessment of a firm or

association of’ persons or new assessment of a

firm or associa-

tion of persons is ordered to be made, the

Appellate Assistant Commissioner may authorise

the Income-tax Officer to amend accordingly

any assessment made on any partner of

the firm or any member of the association’. All the returns have been filed by Debi Parshad but in different capacities. The Income-tax Officer was of the view that the business was carried on by an association of persons and the income from the business was liable to be brought to tax on that footing. The Appellate Assistant Commissioner was of the view that the income belonged to Debi Parshad and he was liable to be assessed personally in respect of the income. Evidently the Income-tax Officer held that Debi Parsbad was a member of an association of persons. Since the Appellate Assistant Commissioner set aside the’ order assessing the income in’ the status of " association of individuals", he had to give directions with regard to the assessment of the income, provided the assessment was not barred by the law of Limitation. Section 34 subsection 3 prescribes for the period in which assessment proceedings shall be completed. The section at the date of assessment by the Income-tax Officer read as follows:-

"No order of assessment or re-assessment,

other than an order of assessment under

section 23 to which clause (c) of sub-section

(1) of section 28 applies or an order of

assessment or reassessment in cases falling

within clause (a) of sub-section (1) or sub-

section (IA) of this Section shall be made

after the expiry of four years from the end of

the year in which the income, profits or gains

were first assessable:

Provided further that nothing contained in

this section limiting the time within which

any action may be taken. or any order,

assessment or re-assessment may be made, shall

apply to a re-assessment made under section 27

or to an assessment or re-assessment made on

the assessee or any person in consequence of

or to give effect to any finding or direction

contained in an order under section 31,

section 33, section 33A, section 33B, section

66 or section 66A". The assessment of tax had according to the law at the relevant time. in force, ordinarily, to be completed by the Income-tax Officer within four years from the last date of the year of assessment in which the income, was first assessable. But to this rule there were several exceptions. If the assessment had to be made on the assessee or any person ’m consequence of or to give effect to any findings or direction contained in an order of the Appellate Assistant Commissioner or of the Appellate Tribunal or of the Commissioner in revision or of an order made in a reference, the assessment could be made even after the expiry of the four years. The exception applied to an assessment made against the assessee or any person in consequence of, or to give effect to any finding or direction contained in the order of any superior tribunal, or ’the High Court or this Court. This Court in S. C. Prashar and another v. Vasantsen Dwarkadas and others(1) held that the second proviso to s. 34(3) of the Incometax Act, 1922, insofar as it authorised the assessment or reassessment of any person other than the assessee after the expiry of the period of limitation specified in s. 34 in consequence of or to give effect to a finding or direction given in an appeal, revision or reference arising out of the proceeding in relation to the assessee violated the provisions of Art. 14 of the Constitution and was invalid to that extent. In a later case Income-tax Officer, Award, Sitapur v. Murlidhar Bhagwan Das(1) this Court explained the connotation of the expression "any person" as used in s. 34 sub-s. (3) proviso 2 at p. 346 :

"Theexpression ’any person’ in its widest

connotation may take in any person, whether

connected or not with theassessee, whose

income for any year has escaped assessment,

but this construction cannot be accepted, for

the said expression is necessarily circum-

scribed by the scope of the subject matter of

the appeal or revision as the case may be.

That is to say, that person must be one who

would be liable to be assessed for the whole

or a part of the income that went into the

assessment of the year under appeal or

revision. If so construed, we must turn to

section 31 to ascertain who is that person

other than the appealing assessee who can be

liable to be assessed for the income of the

said assessment years. A combined reading, of

section 30(1) and section 31(3) of the Act

indicates the cases where persons other than

the appealing assessee might be affected by

orders passed by the Appellate Commissioner.

Modification or setting aside ’of assessment

made on a firm, joint Hindu family,

association of persons, for a particular year

may affect the assessment for the said year on

a partner or partners of the firm, member or

members of the Hindu Undivided family

or the individual, as the case may be. In

such cases,. though the latter are not eo

nomine parties to the appeal, their

assessments depend upon the assessment of the

former. The said instances are only

illustrative. It is not necessary to pursue

the matter further. We would, therefore, hold

that the expression ’any person’ in the

setting in which it appears must be confined

to a person intimately connected in the

aforesaid sense with the assessments of the

year under appeal." In Commissioner off Income-tax, U.P. v. Kanpur Coal Syndicate(1) this Court held that-where the income-tax Officer assessed the income of an association of persons under s. 31(3).(b) the Appellate Assistant Commissioner was competent to set aside the assessment and- to direct the Income-tax Officer to assess the members individually. The Court observed that the Appellate Assistant Commissioner bad under the Act plenary powers in disposing of an appeal, the scope of his powers being conterminous with that of the Income-tax Officer: he can do what-the Income-tax Officer can do and can also direct the Income-tax Officer to do what he has failed to do. Debi Parshad had submitted the returns, and Debi Parshad, appealed against the order of assessment. He could,- in the circumstances of the case, not be called a stranger to the assessment. The income earned by the assessee was assessed to tax as income of an association of persons, of which on the finding ,of the Income-tax Officer, Debi Parshad was a member. In making a direction against Debi Parshad the Tribunal did not exercise his powers qua a stranger to the assessment proceeding. ,Civil Appeal Nos. 1280-1282 of 1966 must therefore fail. The Appellate Assistant Commissioner had directed that the income in the three assessment years be assessed in the hands of the family of Debi Parshad, apparently on the view that Debi, Parshad represented the Hindu Undivided family of Which he was a member. The Tribunal set aside the direction to assess the income of the Ambala Flour Mills in the hands of Debi Parshad. personally. for in their view Debi Parshad was a stanger to the proceeding for assessment. The High Court held, that the ,order of the Appellate Assistant Commissioner directing assessment of "the family of Debi Parshad" was "clearly unwarranted and could relate only ot Debi Parshad in his individual capacity". Appeals Nos. 1277 to 1279 of 1966 were filed against that part of the order of the High Court by which they sought to ,modify the order of the Appellate Assistant Commissioner. The High Court exercising advisory jurisdiction was incompetent to amend the order of the Appellate Assistant Commissioner. But on the question referred to the High Court, no inquiry into the power of the Appellate Assistant Commissioner to make the impugned direction was competent. The second question only related to the assessment of the income in the hands of Debi Parshad after annulling the assessment of the Ambala Flour Mills. It was not contended before the Tribunal that the income of the Ambala Flour Mills could not be assessed in the hands of the family of Debi Parshad. The competence of the Appellate Assistant Commissioner to make the direction was not and could not be referred to the High Court. Appeals Nos. 1277 to 1279 of 1966 filed by the Commissioner therefore fail. There will be no order as to costs in all the appeals. G.C. Appeals dismissed.