1. Shri Vijai Kumar Mishran, the opposite party, in these three applications, had filed two returns each during the years in question, namely, assessment years 1974-75, 1975-76 and 1976-77, one in his capacity as Hindu undivided family and the other in Ms individual capacity. A certain income was shown by the opposite party in these returns as belonging to Hindu undivided family. The Income-tax Officer, however, did not accept the contention of the opposite party in this behalf and treated that income as his individual income. Against the assessment orders passed by the Income-tax Officer, appeals were preferred by the opposite party. The Appellate Assistant Commissioner reversed the order of the Income-tax Officer on this point and held that the said income was of the Hindu undivided family. In compliance thereof, that income was deleted from the assessment of the opposite party in his individual capacity. The orders passed by the Appellate Assistant Commissioner in the appeals filed by the opposite party against the orders of assessment in the eases of Hindu undivided family were allowed to become final by the Revenue. Three appeals were, however, filed by the Revenue against those orders of the Appellate Assistant Commissioner whereby the aforesaid income had been deleted from the assessment of the opposite party in his individual capacity, which indeed had been done in order to give effect to the order passed by him in the appeals filed by the opposite party as Hindu undivided family. These three appeals were dismissed by the Tribunal by its order dated May 1, 1982. The Tribunal took the view that, even though the order passed by the Appellate Assistant Commissioner in the cases of Hindu undivided family did not operate as res judicata, yet the said; order was a relevant order, inasmuch as the point involved was interconnected and interdependent with the decision of the Appellate Assistant Commissioner in the cases of Hindu undivided family, that the said order has. to be taken into consideration even while deciding the appeals filed against the order of the Appellate Assistant Commissioner against the assessment of the opposite party in his individual capacity. The Tribunal in dismissing the three appeals filed by the Revenue also placed reliance an a decision of this court in Radhey Shyam Sri Krishna v. GIT : 137ITR602(All) .
2. Thereafter, three applications were made on behalf of the Revenue under Section 256(1) of the Income-tax Act, 1961--one in respect of each of the assessment years mentioned above with the prayer that three questions of law mentioned in the applications may be referred to this court for its opinion. These applications were dismissed by the Tribunal by its order dated December 17, 1982. The Tribunal has taken the view that once the Appellate Assistant Commissioner had accepted the assessment as regular in the cases of Hindu undivided family, the income assessed in the hands of Hindu undivided family cannot be taxed again in the hands of the opposite party in his individual capacity. It also pointed out that since the Revenue had not filed any appeal against the order of the Appellate Assistant Commissioner in the cases of Hindu undivided family, the points raised in question Nos. 1 and 3 were purely of an academic nature and did not deserve to be referred to this court. As regards question No, 2, the Tribunal took the view that it was not only too vague but no useful purpose will be served in referring the said question in view of the decision given by this court already in the case of Radhey Shyam Sri Krishna : 137ITR602(All) . Aggrieved, the Commissioner has filed these three applications under Section 256(2) of the Income-tax Act.
3. Having heard counsel for the parties, we are of the opinion that in view of the facts mentioned in the appellate order of the Tribunal, even though principles of res judicata are not applicable in assessment proceedings, the order of the Appellate Assistant Commissioner holding that the income mentioned above was of the Hindu undivided family could be taken into consideration by the Tribunal in the appeals filed by the Revenue against those orders passed by the Appellate Assistant Commissioner deleting the aforesaid income from the assessment of the opposite party in his individual capacity. In CIT v. Durga Prasad More : 82ITR540(SC) , the asses-see after his objection that certain income should not have been included in his total income for the assessment year 1942-43 being overruled, continued to show that income in his returns for the subsequent years but after several years it was reiterated by him that the said income should not be included in his total income. It was held by the Supreme Court that even though it is true that neither the principle of res judicata nor the rule of estoppel is applicable to assessment proceedings, the fact that the assesses included the said income in his returns for several years even after objecting to the inclusion of that income in his total income in the assessment year 1942-43, in the absence of any satisfactory explanation, is undoubtedly a circumstance which the taxing authorities were entitled to take into consideration. In this view of the matter, we are of opinion that no exception can be taken to the view taken by the Tribunal and the questions of lawsought to be referred to this court do not urine from the order of the Tribunal. These three applications arc accordingly dismissed with one set of costs assessed at Rs. 125.