on o al
M/S. GAURI SHANKAR, CHANDRABHAN Vv, C.LT., U.P., LUCKNOW
May 3, 1976 [A. C. GuPTA AND JASWANT SinGu, JJ.]
Assessment jurisdiction of Income Tax Officers—Iurisdiction to continue to assess as undivided, despite partition under personal law, a Hindu family which has hitherto been assessed in that status—Interpretation and scope of s.25A(3) read with s. 2SA(1) of the Income Tax Act—Penalty imposed under s. 28(1)(c) of the Act for concealment of income by the Hindu Undivided Family prior to the actual date of recording of an order accepting the disruption of the Hindu Undivided Family is proper.
In response to a show cause notice dated March 15, 1957, under s. 28(1)(c) of the Income Tax Act, before imposing a penalty for deliberate concealment of its income, the appellant, through its authorised representative, voluntarily agreed to a sum of Rs. 15,000/- being treated as income of Hindu Undivided Family. The Income Tax Officer, by his order dated March 20, 1958, -added a sum of Rs. 68,550/~ to the income of the appellant and imposcd on it a penalty of Rs. 26,000/- which on appeal was reduced to Rs. 15,000/-, Mean while, on March 19, 1957, the appellant filed an application under s. 25A of the Act for an order recording partition of joint family property in definite portions from June 22, 1956, claiming that date to be the date of partition, The Income Tax Officer, after due enquiries, accepted the disruption of the Hindu Undivided Family as claimed by his order dated March 26, 1962. This led the appellant to contend that, in view of the orders dated March 26, 1962, of the Income Tax Officer, the imposition of the penally by him on March 20, 1958. was bad in Jaw and could not be sustained. The Tribunal upheld the contentions of the appellant resulting in a reference under s. 66(1) of the Act to the High Court of Allahabad (Lucknow Bench), which reversed the decision of the Tribunal. However, the High Court granted a certificate of fitness for appeal to this Court.
Dismissing the appeals the Court,
HELD : Sub-section (3) of s. 25A of the Income Tax Act embodies a legal fiction according to which a Hindu family which has been previously assessed as “undivided” is to be continued to be treated ag “undivided” till the passing of the order under sub-s. (1) of s. 25A. So long as no order under s. 25(A)(1) of the Act is recorded, the jurisdiction of the Income Tax Officer to continue to assess as undivided despite a partition under personal Jaw, a Hindu family which has hitherto been assessed in that status, remain unaffected. [508G-H]
Additional Income Tax Officer, Quddapah v, A. Thimmayya & Anr. 55 LT.R. 666; Joint Family of Udayan Chinubhai etc. vy. Commissioner of Income Tax, Gujarat (1967) 63 1.T.R. 416, applied.
Commissioner of Income Tax vy. Sanichar Sah Bhim Sah (1957) 27 LTR.
307; S. A. Raju Ckattiar & Ors. v. Collector of Madras & Anr. (1956) 29 LT.R. |
241; Mahankali Subba Rao Mahankali Nageswara Rao & Anr. v, Commissioner of Income Tax, Hyderabad (1957) 31 L.T.R. 867 and Commissioner of Income roy, Punjab v. Mothu Rem Prem Chand (1967) 66 1.T.R. 638, not applicable. : ;
HELD FURTHER : In the instant case, there was not a whisper of the application under s. 25A (1) of the Act by the appellant on March 15, 1957, when the penalty proceedings were initiated against it. Even-:on March 20, 1958, when the penalty was imposed, there was no order under s. 25A(t) of the Act. It was only on March 26, 1962, that the partition was recognised and order
506 SUPREME COURT REPORTS [1976] SUPPLEMENTARY under s. 27A(1) of the Act was passed. There was, thus, no bar to the imposition of the impugned penalty. [S09E-F]
Civit, APPELLATE JURISDICTION : Civil Appeal No. 886 of 1971.
(From the judgment and order dated the 18.9.1969 of the Allahabad High Court in 1. T. R. Misc. Case No. 836 of 1963.)
G. C. Sharma, V. N. Ganpule, D. K. Jain, Anup Sharma and P. C. Kapur, for the appellant.
B. Sen and S. P. Nayar, for the respondent
The Judgment of the Court was delivered by
JASWANT SINGH, J. This is an appeal by certificate of fitness granted by the High Court of Judicature at Allahabad under section 66- A(2) of the Indian Income-tax Act, 1922 (hereinafter referred to as ‘the Act’) from its judgment datcd September 18, 1969 in I.T.R. Misc. Case No. 836 of 1963.
The facts giving rise to this appeal are: The appellant, a Hindu undivided family consisted of Gauri Shankar, the father, and his three sons viz, Chandrabhan, Bengali Lal aad Brij Kishan. Gauri Shankar, the karta of the family who was incharge of the affairs of the family during the relevant year which extended from April 13, 1945 to April 12, 1946, the assessment year being 1946-47, died on April 2, 1946. He was succeeded by his son, Chandrabhan as Karta of the family. The appellant had, in the first instance, filed a retura showing an income ot Rs, 9,701/-. On scrutiny of the relevant material, the Inconae Tax Ofticer found a number of discrcpencies in the accounts of the appellant and also noted the existence of cash credits to the appellant’s account in the books of another firm viz. M/s. Tilyani Glass Works and a certain sum deposited in an account styled as Abdul Wahid Khan & Suns. He thereupon issued a notice dated March 15, 1957, calling upon the appellant to explain the discrepencies in the accounts as also in the cash credits and to show cause why a penalty under section 28- (1)(c) of the Act be not imposed upon it. In response to the notice, a representative of the appellant appeared before the Income Tax Officer and voluntarily agreed to a sum of Rs. 15,000/- being treated as its income. After hearing the Appellant’s representative, the Facome Tax Officer felt satisfied that the appellaat had deliberately concealed its income and furnished an inaccurate return. Accordingly, by his order dated March 20, 1958, he added a sum of Rs. 68,550/- to the .
income of the appellant and imposed on it a penalty of Rs. 26,000/-. Meaawhile, on March 19, 1957; an application under section 25-A of the Act was made to the Income Tax Officer for an order recording partition of joint family property in definite portions, which according to the application had taken place amongst the members of the Hindu undivided family on June 22, 1956. The Income Tax Officer on being satisfied after making enquiries that a complete partition of the joint family property has taken place, recorded an order under section 25- A(1) of the Act on March 26, 1962, accepting the partition with effect
2 a ¥
GAURL SHANKAR v. C. 1. T, (Jaswant Singh, J.) 507 irom June 22, 1956, as claimed. Against the peaalty of Rs. 26,000/imposed by the Income Tax Officer by his order dated March 20, 1958, the appellant preferred an appeal to the Appellate Assistant Commissiouer, who reduced the penalty to Rs. 15,000/-. Not satisfied with this reduction, the appellant went up in further appeal to the Incometax Appellate Tribunal and raised before it a number of contentions. Amongst other things, it was urged before the Tribunal that since the Hindu undivided family hag disrupted on June 22, 1956, as accepted by the Income Tax Officer in his aforesaid order dated March 26, 1962, passed under section 25-A(1) of the Act, the imposition of the penalty by the Income-Tax Officer on March 20, 1958, after the disruption of the family was bad in law and could not be sustained. White rejecting the other contentions raised on behalf of the appellant, the Tribunal upheld this contention by its order dated March 6, 1963. Thereupon the Commissioner of Income-tax, U.P. made aa application before the Income-tax Appellate Tribunal under section 66(1) of the
‘Act requesting that the following question of law arising from its deci- sion be referred to the High Court :—
“Whether in the facts und circumstances of the case the imposition of penalty under sectio'a 28(1)(c) on the Hindu undivided family after it had disrupted within the meaning of section 25-A is bad in law”.
Acceding to the request of the Commissioner of Income Tax, the Tribunal referred the above mentioned question to the High Court which answered the same in the negative. The appellant thereupon applied to the High Court and obtained the aforesaid certificate of fitness for appeal to this Court. This is how the matter is before us.
. Relying on Commissioner of Income Tax v. Sanichar Sah Bhim Sah(*), 8. A. Raju Chattiar & Ors. v. Collector of Madras & Anr.(*) Mahankali Subba Rao, Mahankali Nageswara Rao & Anr. v. Comnussioner of Income-tax, Hyderabad() and Commissioner of Incometax, Punjab v. Mothu Ram Prem Chand(+) counsel for the appellant has reiterated before us that since the Hindu undivided family had dis~ solved on June 22, 1956 as accepted by the Income Tax Officer vide his order dated March 26, 1962 passed under section 25-A of the Act and the Act did not provide any machinery for imposition of the penalty on the Hindu family after its disruption, the imposition of penalty on March 20, 1958 was had in law and could not be sustained. Counsel appearing on behalf of the Revenue has, on the other haind, urged that imposition of impugned penalty cannot be challengeg as in view of section 25-A(3) of the Act, a Hindu undivided family must be deemed to have continued in existeace till the date of the passing of the order under section 25-A(1) of the Act.
For a proper determination of the question, it is necessary to refer to section 25-A of the Act which at the relevant time stood as under :—
“25-A. (1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of aay member
~ (L) (1987) 27 TT. R. 307. (2) (1956) 29 IT. R. 241, (3) (1957) 3L TT. R. 867. (4) (1967) 66 1.T.R. 638.
ico
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508 SUPREME COURT REPORTS [1976] SUPPLEMENTARY of a Llindu family hitherto assessed as undivided that a partition has taken place among ihe members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied that the joint family property has been partitioned among the various members or groups of members in defiaite portions, he shall record an order to that effect :
Provided that no such. order shall be recorded until notices of the inquiry have been scrved on all the members of the family.
(2) Where such an order has been passed, or where any person has suceceded to a business. profession or vocation formerly carried on by a Hindu undivided family, whose joint family property has been partitioned on or after the fast day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of ihe total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding anything contained in sub-section (1) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it; aad the Income-tax Officer shall make assessments accordingly with the provisions of section 23.
Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and scverally for the tax assessed on the total income received by or on behalf of the joint family as such.
(3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family.”
It will be noticed that sub-section (3) of the above quoted section embodies a legal fiction according to which a Hindu family which has been previously assesscd as ‘undivided’ is to be continued to be treated as ‘undivided’ till the passing of the order under sub-sectioa (1) of the section. This view gains strength from two decisions of this Court in Additional Income-tax Officer, Quddapah v. A. Thimmayya & Anr(’) and Joint Family of Udayan Chinubhai etc. v. Commissioner of Income-tax, Gujarat(*) where it was held that so long as ao order under section 25-A(1) of the Act is recorded. the jurisdiction of the Income Tax Officer to continue to assess as undivided despite partition under personal Jaw a Hindu family which has hitherto been asseesed in that status remains unaffected. Jt will be profitable in this connection
“() (1955) 55 17. R. 666. (2) (1937) 63 LL TLR. 416.
> wa ®
GAURI SHANKAR v. C. L. T. (Jaswant Singh, J.) 509 to refer io the following observation made in A. Thimmayya’s case (supra) :—
“The section makes two substantive provisions (i) that a Hiadu undivided family which has been assessed to tax shall be deemed, for the purposes of the Act, to continue to be treated as undivided and thercfore liable to be taxed in that status unless an order is passed in respect of that family recording partition of its property as contemplated by subsection (1); and (ii) if at the time of makitag an assessment it is claimed by or on behalf of the members of the family that the property of the joint family has been partitioned among the members or groups of members in definite portions, ic. a complete partition of the entire estate is made resulting in such physical division ef the estate as it is capabk of being made, the Income-tax Officer shall hold an jnquiry, and if he is satisfied that the partition had taken placc. he shall record an order to that effect... .. .. The Incometax Officer may assess the income of the Hindu family hitherto assessed as undivided notwithstaliading partition, if no claim in that behalf has been made to him or if he is not satisfied about the truth of the claim that the joint family property has been partitioned in definite portions, or if on account of some error or inadvertence he fails to dispose of the claim. In all these cases his jurisdiction to assess the income of the family hitherto assessed as undivided renvain unaffected, for the procedure for making assessment of tax is statutory.”
In face of the aforesaid decisions of this Court, it is not necessary to burden the record by discussing the decisions cited by counsel for the appellant.
In the present case, there was not a whisper of the application under section 25-A(1) of the Act by the appellant oa March 15, 1957 when the penalty proceedings were initiated against it. Even on March 20, 1958, when the penalty was imposed, there was no order under section 25-A(1) of the Act. It was only on March 26, 1962, that the partition was recogaised and order under section 25~A(1) of the Act was passed. There was thus no bar to the imposition of the impugned penalty. Accordingly, we find no force in the contention of counsel for the appellant and are of the opinion that the question was_ rightly answered in the negative by the High Court.
The appeal, therefore, fails and is dismissed but in the circumstanees of the case without any order as to costs.
wo
S.R. Appeal dismissed,