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Deccan Bharat Khandsari Sugar Factory Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberCase Referred No. 159 of 1978
Judge
Reported in(1980)14CTR(AP)11; [1980]123ITR802(AP)
ActsIndian Income Tax Act, 1922 - Sections 23(5); Income Tax Act, 1961 - Sections 155, 182, 182(1), 183 and 183(2)
AppellantDeccan Bharat Khandsari Sugar Factory
RespondentCommissioner of Income-tax
Appellant AdvocateA. Panduranga Rao, Adv.
Respondent AdvocateP. Rama Rao, Adv.
Excerpt:
direct taxation - status of firm - section 23 (5) of indian income tax act, 1922 and sections 155, 182, 182 (1), 183 and 183 (2) of income tax act, 1961 - partnership formed allegedly with two major partners and five minor partners having different share in firm - on raid it was found that share of profit of firm was divided amongst two major partners and minor partners were mere dummies - partner of assessee firm assessed as individual while application for seeking registration of firm under section 185 was pending - subsequently income tax officer (ito) assessed firm as unregistered firm - appeal filed referring question whether assessment of firm as unregistered firm was proper and legal - contended that having assessed share income of individual partners it was not open to ito to.....ramachandra raju, j. 1. this reference under section 256(2) of the i.t. act made by the income-tax appellate tribunal, a.p., hyderabad, at the instance of the assessee, m/s. deccan bharat khandsari sugar factory, hyderabad, raises the question ' whether, on the facts and in the circumstances of the case, the assessment of the unregistered firm was proper and legal '2. the material facts are as follows:--the assessment year is 1970-71. the accounting year of the assessee was the year from october, 1968, ending with september 30, 1969. the assessee filed an application in form no. 11 on october 16, 1968, before the ito seeking registration of the firm under section 185 of the i.t. act. it has filed the return for the assessment year 1970-71 showing an income of rs. 58,845. according to the.....
Judgment:

Ramachandra Raju, J.

1. This reference under Section 256(2) of the I.T. Act made by the Income-tax Appellate Tribunal, A.P., Hyderabad, at the instance of the assessee, M/s. Deccan Bharat Khandsari Sugar Factory, Hyderabad, raises the question ' whether, on the facts and in the circumstances of the case, the assessment of the unregistered firm was proper and legal '

2. The material facts are as follows:--The assessment year is 1970-71. The accounting year of the assessee was the year from October, 1968, ending with September 30, 1969. The assessee filed an application in Form No. 11 on October 16, 1968, before the ITO seeking registration of the firm under Section 185 of the I.T. Act. It has filed the return for the assessment year 1970-71 showing an income of Rs. 58,845. According to the assessee, it was a firm of two partners, Haridwarimal and Rudmal, each owning a 20% share with five minors admitted to the benefits of the partnership and the partnership is evidenced by a partnership deed dated August 20, 1968. Two minors, Purushottamkumar and Sanjaykumar, owning each a 15% share in the partnership, are the grandsons of Haridwarimal. The last three minors, Motilal, Chandulal and Kamal Kumari, each owning a 10% share, are the nephews of Rudmal. The group of Haridwarimal including his two grandsons were having a 50% share in the partnership and their total capital contribution is disclosed at Rs. 50,000. Haridwarimal's contribution to the capital is shown as Rs. 20,000. His two grandsons are shown to have contributed Rs. 15,000 each towards capital and the capital invested by these minor grandsons is claimed to have come out from earlier gifts made to the minors by Haridwarimal. Similarly, the group of Rudmal including his three nephews was owning the balance of 50% share in the partnership. Rudmal has contributed Rs. 30,000 and his three minor nephews are shown to have each contributed Rs. 7,000, Rs, 6,000 and Rs. 6,000 towards capital, making the total contribution made by Rudmal's group, Rs. 49,000. In the case of the minor nephews of Rudmal also, their contribution towards the capital is said to have come out from gifts made earlier in their favour by Rudmal. Haridwarimal filed his individual return for the assessment year 1970-71 and the assessment was made on November 20, 1970, under Section 143(3) of the IT. Act by the ITO, ' D ' Ward, Circle-I, Hyderabad. The said Haridwarimardisclosed Rs. 10,261 as his 20% share income from the firm. The ITO has provisionally adopted that return' subject to rectification under section 155 of the Income-tax Act '. On January 16, 1971, while still the assessment proceedings of the firm for the accounting year 1970-71 were pending, a raid was conducted by the income-tax officials as a result of which duplicate sets of accounts were found in the business premises of the assessee. Those duplicate sets of accounts disclosed, (1) the real profits of the firm were Rs. 2,68,415, (2) the profits were divided equally between only the two partners, Haridwarimal and Rudmal, (3) the capital alleged to have been contributed by the minors and shown to have ilown from the two partners as gifts, were transferred back to the partners in the duplicate set of books, (4) the minors were not given any share in the profits. Purushottamkumar, a minor grandson of Haridwari-mal, filed his individual return for the same assessment year 1970-71. His assessment was made under Section 143(1) of the I.T. Act on August 20, 1972, by the ITO, ' L ' Ward, Circle-I, Hyderabad. He showed an income of Rs. 7,695 as his share of income from the firm. The assessment order contains the following material statement:

' The assessment is completed on protective basis as the assessee has filed return of income and as there is likelihood of refusing the registration to the firm in which the assessee is a partner.......'

3. The assessee's share in the firm at Rs. 7,695 was provisionally adopted as returned subject to necessary rectification on completion of the firm's assessment. Sanjaykumar, the other grandson of Haridwarimal, had also filed his individual return for the same assessment year disclosing his share income as Rs. 7,695. His assessment was made on March 15, 1973, under s, 143(3) of the I.T. Act by the ITO, H. Ward, Circle-I, Hyderabad. The assessment order contains the following statement:

' The ussessee appears to be only a dummy partner, the actual beneficiary being Sri Haridwarimal, However, on a protective basis the income returned by the assessee is accepted. '

4. It is thus to be seen that the members belonging to the Haridwarimal group filed their individual returns for the assessment year before three different ITOs and their assessments were made subject either to rectification under Section 155 in the case of Haridwarimal; on a protective basis and subject to necessary rectification on completion of the firm's assessment in the case of Purushottamkumar, on a protective basis as Sanjaykumar is only a dummy partner, the actual beneficiary being Haridwarimal in the case of Sanjaykumar. The ITO, ' C ' Ward, Special Circle-II, Hyderabad, before whom the assessment proceedings of the firm were pending, refused registration of the firm by his order dated March 23, 1973. He refused registration on two grounds, viz., (1) that the profits of the firm were not divided in accordance with the terms of the partnership deed, and (2) that the firm really consisted of only two partners and the minors were only ' dum-mies '. He then proceeded with the assessment treating the assessee as an association of persons. The assessee went in appeal before the AAC, Special Range, Hyderabad. Before the AAC it was argued on the basis of the Supreme Court decision in CIT v. Murlidhar Jhawar and Puma Ginning and Pressing Factory : [1966]60ITR95(SC) that the ITO, having exercised option to arsess some of the partners separately, cannot assess the same income in the hands of the firm and that registration to the firm should have been granted. The AAC held that the aforesaid Supreme Court case arose under Section 3 of the 1922 Act and that no such disability continues against the revenue because of the manner in which Section 4 of the I.T. Act, 1961, is worded and that registration of the firm was properly refused. He accordingly dismissed the assessee's appeal on December 26, 1974. The assessee then appealed to the Tribunal. Before the Income-tax Appellate Tribunal, reliance was placed by the assessee on the decision of this court in Ch. Atchaiah v. ITO : [1979]116ITR675(AP) and the same contentions were repeated before it. The Tribunal held that Atchaiah's case : [1979]116ITR675(AP) is distinguishable on facts from the facts of the present case. After considering the law bearing on the subject and the various decisions cited before the Tribunal, the Tribunal held that the registration of the firm was rightly refused and that the assessment of the assessee should be made as an unregistered firm and the firm and the partners will have to be assessed as separate taxable entities without any violence to the principle of double taxation in respect of the same income. The Tribunal also held that there is no question of option being exercised by any assessing authority and that even otherwise the assessments of three out of seven partners were made in this case only as a provisional or on protective basis and they are not completed assessments. The Tribunal, accordingly, dismissed the assessee's appeal on August 29, 1977. The assessee requested the Tribunal to refer two questions of law to this court, viz., (1) whether, on the facts and in the circumstances of the case, the Appellate Tribunal is justified in holding that the assessee is not entitled to the benefits of registration under Section 185(1)(a) of the Act; and (2) alternatively, whether in view of the fact that the assessments of two of the partners having been completed on the share incomes of the assessee-firm earlier to the assessment of the firm, is the Appellate Tribunal justified in law in holding that the ITO was correct in making an assessment of the income of the firm in the hands of the firm again.

5. The Income-tax Appellate Tribunal has thereupon referred to this court the following question of law :

' Whether, on the facts and in the circumstances of the case, the assessment of the unregistered firm was proper and legal '

6. Sri Panduranga Rao, the learned counsel appearing for the assessee, has argued that having assessed the share income returned by the partners. Sri Haridwarimal, Purushottamkumar and Sanjaykumar, it is not open to the ITO to assess the income in the hands of the assessee as an unregistered firm. In support of this contention, he has placed reliance on the decisions in CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory : [1966]60ITR95(SC) and Ch. Atchaiah v. ITO : [1979]116ITR675(AP) and certain other decisions which have taken the same view. He has brought to our notice the decision of the Punjab and Haryana High Court in Rodamal Lalchand v. CIT of the Patna High Court in Mahendra Kumar Agarwalla v. ITO : [1976]103ITR688(Patna) and of the Delhi High Court in Punjab Cloth Stores v. CIT : [1980]121ITR604(Delhi) , which have taken a contrary view. Prithvi Raj J., speaking for the Bench of the Delhi High Court, referred to Atchaiah's case : [1979]116ITR675(AP) and has expressed dissent. The decision in Atchaiah's case was not referred to in the judgments of either the Patna High Court or the Punjab and Haryana High Court, The difference in opinion arose because according to one view adopted in Atchaiah's case, Section 4 of the I.T. Act, 1961, which is the charging section, did not alter the law on the subject which construed the charging Section 3 of the Indian I.T. Act, 1922.

7. Much of the controversy will stand resolved if Sections 182 and 183 of the I.T. Act, 1961, as they stood prior to the Taxation (Laws Amendment) Act, 1970, are kept in view. Section 182 of the I.T. Act, 1961, read as follows:

' Section 182(1): Notwithstanding anything contained in Sections 143 and 144 and subject to the provisions of Sub-section (3), in the case of a registered firm, after assessing the total income of the firm,--

(i) the income-tax payable by the firm itself shall be determined ; and

(ii) the share of each partner in the income of the firm shall be included in his total income and assessed to tax accordingly.

(2) If such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of Sections 70 to 75.

(3) When any of the partners of a registered firm is a non-resident, the tax on his share in the income of the firm shall be assessed on the firm at the rate or rates which would be applicable if it were assessed on him personally, and the tax so assessed shall be paid by the firm.

(4) A registered firm may retain out of the share of each partner in the income of the firm a sum not exceeding thirty per cent. thereof until such time as the tax which may be levied on the partner in respect of that share is paid by him; and where the tax so levied cannot be recovered fromthe partner, whether wholly or in part, the firm shall be liable to pay the tax, to the extent of the amount retained or could have been so retained. '

8. Section 183 of the I.T. Act, 1961, read as follows:

'Section 183.--In the case of an unregistered firm, the Income-tax Officer-

(a) may determine the tax payable by the firm itself on the basis of the total income of the firm ; or

(b) if, in his opinion, the aggregate amount of the tax payable by the partners if the firm were treated as a registered firm would be greater than the aggregate amount of the tax which would be payable by the firm under Clause (a) and the tax which would be payable by the partners individually, may proceed to make the assessment under Clause (ii) of Sub-section (1) of Section 182 as if the firm were a registered firm ; and where the procedure specified in this clause is applied to any unregistered firm, the provisions of Sub-sections (2), (3) and (4) of Section 182 shall apply thereto as they apply in the case of a registered firm.'

9. The position regarding the assessment of a firm and its partners is as follows depending upon whether the firm was unregistered or registered :

' Where the firm is unregistered, the tax payable by the firm itself is determined as in the case of any other distinct entity and the levy is made on the firm itself. If the firm was unregistered and the tax had been paid by the firm itself, no tax was payable by the partners in respect of their respective shares which had already borne tax in the hands of the firm. Tax is not payable by a partner of an unregistered firm in respect of his share in the income of the firm on which tax is payable by the firm although such share is to be included in his total income for the purpose of determining the rate applicable to his taxable income. On the other hand, where the firm is registered, income-tax commonly known as the ' registered firm's tax' is assessable on the registered firm. Each partner's share in the registered firm's income is added to his other income, and the tax payable by such partner on the basis of his total income would be determined.'

10. The basic principle involved is that double taxation should be avoided and the same income cannot be taxed twice, once in the hands of the firm and once in the hands of its individual partners. Section 183 of the I.T. Act, 1961, which provides for the assessment of unregistered firms, gives the option to the ITO to determine the tax payable by the firm itself on the basis of the total income of the firm. He is also given an option to determine the tax payable by the firm and the tax payable by the partners individually if it were assessed as a registered firm and if in his opinion the aggregate so arrived at is greater than the tax which would be payable by the partners individually, he can proceed to make the assessment under Section 182(1) as if the firm was a registered firm. The ITOis given a discretion to safeguard the interests of the revenue in assessing unregistered firms. Before the ITO can exercise his option under Section 183(b) of the I.T. Act, 1961, he necessarily has to assess the tax payable by the firm and the tax payable by the partners individually, without doing which he will not at all be in a position to know whether the revenue is sustaining any loss. As the facts go in this case, the assessee-firm made a profit of Rs. 2,68,415. The three partners returned their incomes on the basis that the firm has earned a profit of only Rs. 54,845. The totality of the income of the firm was thus not subjected to tax in the hands of those three partners. As against seven partners claimed by the assessee, it was established that there were in fact only two partners. The assessing officer has necessarily to determine the total tax payable by the firm and its real partners before he can exercise his option under Section 183. In such circumstances, the assessee cannot contend that the real income cannot be assessed in its hands, merely because some provisional or protective assessments have been made in respect of 3 out of the 7 partners who returned patently false and low incomes.

11. In Kalekhan Mohd Hanif v. CIT : [1972]86ITR196(MP) , the Madhya Pradesh High Court considered the question whether the assessment of the firm made after all the partners had been assessed first on the share income from the firm, were valid. : That court held, following the decision of the Supreme Court in Jain Brothers v. Union of India : [1970]77ITR107(SC) , that Section 23(5) of the 1922 Act was not involved in Murlidhar's case : [1966]60ITR95(SC) and that, therefore, Murlidhar's case : [1966]60ITR95(SC) has to be distinguished and that the assessment of the individual partners does not preclude the ITO from taking up the assessment of the firm as well. In another case, dealing with the assessment of a registered firm in CIT v. Chaganlal Durga Prasad a Division Bench of the Rajas-than High Court has held that the effect of Section 23(5) and Section 35(5) of the Indian I.T. Act, 1922, is that the assessment proceedings with regard to a registered firm may continue for purposes of computation of the income and even for the purpose of determining the shares of the partners in that income, even after the assessment of the partners, and appropriate proceedings can be taken for rectification of the mistake, if any, in the assessment of the share income of the partners under Section 35(5) of the Act. The same principles should apply with equal force regarding the assessment of an unregistered firm after Section 23(5)(b) was introduced in the Indian I.T. Act, 1922, by the Amendment Act, 1956, especially when the real income of the unregistered firm is much more than the income returned by some of the partners and the firm as put forward by the assessee never in fact existed. The various decisions cited during arguments can now be considered,

12. Section 4 of the Income-tax Act, 1961, provides that income-tax shall be charged in respect of the total income of the previous year or previous years, as the case may be, of every person. Section 2, Clause (31), defines 'person ' as including (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority, and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses. Under the Indian I.T. Act, 1922, Section 2(9) defined a ' person ' as including a Hindu undivided family and a local authority. Section 3 of the Indian I.T. Act, 1922, states that income-tax shall be charged in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. The terms 'HUF ' and a 'local authority' were appearing in Section 2(9) as well as in Section 3 of the Indian I.T. Act, 1922. Instead of specifying different categories of assessees as was done in Section 3 of the 1922 Act, care was obviously taken in redefining the word 'person ' in Section 2(31) of the I.T. Act, 1961, and in deleting the categories of assessees in the charging section. The words ' of every firm and other association of persons or the partners of the firm or the members of the association individually' which were appearing in Section 3 of the Indian I.T. Act, 1922, were omitted in the definition of person under Section 2(31) of the 1961 Act. The words used ins. 3 of the 1922 Act came up for consideration for deciding whether the income of any firm and other association of persons can be charged to income-tax when the same income has been charged to income-tax in the individual assessments of the partners of the firm or the members of the association. Section 23(5)(a) relating to the assessment of a registered firm and Section 23(5)(b) relating to the assessment of an unregistered firm were introduced into the Indian I.T. Act, 1922, respectively, by the amendments made by the Indian I.T. Act, 1939, and Section 14 of the Finance Act, 1956. The result is that while the income in the hands of an unregistered firm cannot be assessed to income-tax if the same has suffered income-tax in the individual assessments of the partners prior to April 1, 1956, such disability is no longer there after April 1, 1956. No similar provision was, however, made regarding the manner of assessment of association of persons or a body of individuals or its individual members which continued to be a taxable entity. The decision of the Supreme Court in CIT v. Murlidhar Jhawar and Puma Ginning and Pressing Factory : [1966]60ITR95(SC) dealt with a case relating to the accounting year ending November 6, 1953. One Pannalal Lahoti and Govindbai were partners of M/s. Purna Ginning and Pressing Factory. Those two partners along with one Murlidhar carried on a business of joint venture. The three of them filed returns disclosing theindividual income of each of them in the profits of the joint venture. Each of them disclosed a 1/3rd share in Rs. 51,280. The ITO treated the three individuals as partners of an unregistered firm and computed the income of the joint venture at Rs. 80,925. While the proceedings were pending before the Tribunal, these three individuals have agreed to pay the tax payable by them on the difference between the income of the firm and their share of the incomes. It is thus clear that the income was charged to tax in the hands of these three individuals who were treated as an association of persons and not as partners of an unregistered firm. It was on those facts that the Supreme Court held that once the option was exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it was not open to the department to assess the same income as income of the unregistered firm. The observations made in this judgment will no longer apply to the case of assessments made of unregistered firms or partners of such unregistered firms for any accounting year after April 1, 1956. In Atchaiah's case : [1979]116ITR675(AP) , the incomes in the hands of the two individual members of the association were subjected to tax and the question arose whether the same income could be taxed in the hands of the association of those two individuals. While holding that the ITO cannot seek to assess the one income twice--once in the hands of the partners and again in the hands of the association, this court held that the manner in which Section 2(31) of the I.T. Act, 1961, reads does not affect the legal position and the applicability of the decisions which were rendered under Section 3 of the old Act is not affected. The Tribunal is, in our view, correct in holding that Atchaiah's case : [1979]116ITR675(AP) has reference only to the assessments of incomes in the hands of members of an association and the principles laid down therein cannot be applied to the case on hand which dealt with the assessments of an unregistered firm and the individual partners thereof. Sri Panduranga Rao has relied upon another decision rendered by a Bench of this court in CIT v. Hyderabad Deccan Liquor Syndicate : [1974]95ITR130(AP) . That again is a case which related to the assessment sought to be made of an association when the same income was earlier subjected to tax in the hands of the individual members. The decision of the Madras High Court in CIT v. R. Dhandayutham : [1978]113ITR602(Mad) and that of the Patna High Court in Mahendra Kumar Agarwalla v. ITO : [1976]103ITR688(Patna) and that of the Delhi High Court in Punjab Cloth Stores v. CIT : [1980]121ITR604(Delhi) are also cases which dealt with assessments of association of persons and individual members thereof and need not be considered as applicable in any manner to the facts of this case.

13. In the decision Girdhari Lal Laxman Prasad v. CIT : [1968]70ITR853(All) the assessment year was 1958-59 in respect of the assessee, a partner-ship firm, consisting of three partners Girdhari Lal, Laxman Prasad and Ram Dulari Devi. For the same assessment year 1958-59, the ITO made the assessment of two of the partners, Girdhari Lal and Ram Dulari Devi, subject to the remark that the amount would be rectified later under Section 35 of the Indian I.T. Act, 1922, when the correct share was determined in the assessment of the assessee-firm. Subsequently, the ITO made an assessment order against the firm treating it as an unregistered firm for the same year 1958-59. The Income-tax Appellate Tribunal took the view that the ITO was entitled to tax the profits in the hands of the assessee-firm and thereafter grant relief to the individual partners who had paid the tax on their separate assessments. The Bench of the Allahabad High Court had understood the decision of the Supreme Court in Murlidhar's case : [1966]60ITR95(SC) as having reference to a partnership firm. We have earlier referred in detail to the facts in Murlidhar's case : [1966]60ITR95(SC) which came to be considered by the Supreme Court and observed that it was a case of an association of persons and that the assessment related to the period prior to April 1, 1956. The facts in the decision in CIT v. Pure Nichitpur Colliery Company : [1975]101ITR79(Patna) can be noticed: The asssssee is an unregistered firm and was assessed to income-tax for the three assessment years 1964-65, 1965-66 and 1966-67, on February 15, 1967, February 25, 1967, and February 28, 1967, respectively. Earlier on December 31, 1965, the assessments of some of the partners of the firm were completed and their share income was charged to income-tax. During the pendency of the appeal of the unregistered firm before the Tribunal, the assessments of the firm were set aside rejecting the contention of the revenue that because of various amendments made in the income-tax law the unregistered firm could still be assessed. The effect of the amendment brought about by the Finance Act, 1956, was considered in this case and it was held that the amendment brought about by the Finance Act of 1956 did not permit the ITO to assess the income in the hands of the unregistered firm having earlier subjected the same income to tax in the hands of the individual partners. We do not feel persuaded to apply that reasoning to the facts of this case where the real income was not at all subjected to tax. The ITO cannot be expected to form any opinion about the aggregate amount of the tax payable by the partners if the firm were treated as a registered firm or the aggregate amount of the tax payable by the unregistered firm and the tax which should be payable by the partners individually unless he has before him all the assessment files relating to the unregistered firm and its individual partners. It cannot be that the ITO in making the assessment had such right by the Amendment Act of 1970 and he did not have a similar right under the Amending Act of 1956. In the decision in Rodamal Lalchand v. CIT oneLalchand and Sohan Lal, two of the five partners of Rodamal Lal Chand, were assessed to income tax on Fabruary 5, 1968, in their individual capacity in respect of their income from the firm for the assessment year 1963-64. The ITO simultaneously proceeded to assess the firm and made a separate assessment order assessing the firm on March 26, 1968, for the same year. An objection was raised that when once the partners have been assessed in their individual capacity for their share income in the firm, the firm could not be legally assessed separately. It was held that the tax on the unregistered firm was to be determined in accordance with Section 183 of the I.T. Act, 1961, as it stood, prior to the Taxation Laws (Amendment) Act, 1970. It was further held that there is no prohibition in Section 4 of the I.T. Act, 1961, to restrain the assessing authority to proceed against the firm which is a taxable entity, and that the tax on the unregistered firm has to be determined in accordance with Section 183 of the Act and that, therefore, the ITO was correct in proceeding with the assessment against the unregistered firm. In the decision in CIT v. Blue Mountain Engineering Corporation : [1978]112ITR839(Mad) the decision in Murlidhar's case : [1966]60ITR95(SC) was merely followed without noticing the distinguishing features appearing in that case. The feature is, however, there in that case that the partner of the unregistered firm was assessed on the best judgment basis under Section 144 of the I.T. Act. That decision will indicate that when the unregistered firm was also sought to be subsequently assessed on the same basis, the total income in the hands of the firm did not escape assessment. The Madras High Court in the aforesaid decision has listed out all the difficulties that would confront the department in c.ases of this type and with some hesitation preferred to follow the view of the Patna High Court in CIT v. Pure Nichitpur Colliery Company : [1975]101ITR79(Patna) . The two Bench decisions of this court have, as earlier been adverted, reference to cases of assessments of members belonging to an association of persons. No question of double taxation arose for consideration in those cases. We have no hesitation in holding that in the case of an unregistered firm the real income of the unregistered firm can be assessed in the hands of the firm in spite of the fact that a portion of such income has been assessed to income-tax in the hands of a few of the partners of such unregistered firm and that after the unregistered firm is assessed, necessary corrections in the individual assessments of the partners of the firm can be made under Section 155 of the I.T. Act. The assessment of Haridwarimal was made on November 20, 1970, at a time when obviously the application of the firm for registration was pending. There was no knowing at that time whether registration of the firm would be allowed or rejected. There was also no knowing as to what the real income of the firm would be. The ITO who dealt with the individual assessment of Haridwarimal cannot be said to have exercised his discretionto proceed with his individual assessment in such circumstances. So far as the assessments made of Sri Purushottamkumar and Sanjaykumar, they were made after the Income-tax officials raided the business premises of the assessee-firm and found duplicate set of accounts which were showing a different constitution of the firm and a much higher income the firm made in its business for that year. The two ITOs who made the subsequent assessments were naturally having this information and that was why they have made the assessments of those two minor partners on a protective basis. The duplicate set of accounts have revealed that these two minor partners were not having any share at all. The department was not having any information at that time as to the persons for whose ultimate benefit the shares are shown in the partnership deed in the names of these two minors. It cannot, therefore, be contended that the ITOs have in exercise of their option made the assessments of these two minor partners and foreclosed the option of the department to assess the firm itself.

14. Sri Pandurangarao, the learned counsel for the assessee, has tried to argue that the Tribunal went wrong in refusing registration to the firm. This is not a question which is referred to this court. Even assuming that the grant or refusal of registration to the firm is a mixed question of law and fact, the ITO, the AAC and the Tribunal have given proper reasons for refusing registration to the firm.

15. Our answer to the question referred to us is that, on the facts and in the circumstances of the case, the assessment of M/s. Deccan Bharat Khandsari Sugar Factory, Hyderabad, as an unregistered firm was proper and legal. The reference is answered accordingly in the affirmative and against the assessee. No costs. Advocate's fee Rs. 500.


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