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Gur Bux Rai Har Bux Rai Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Reference No. 118 of 1962
Judge
Reported in[1970]75ITR350(All)
ActsExcess Profits Tax Act, 1940 - Sections 8 and 10A
AppellantGur Bux Rai Har Bux Rai
RespondentCommissioner of Income-tax
Appellant AdvocateBrijlal Gupta, Adv.
Respondent AdvocateGopal Behari, Adv.
Excerpt:
- .....gur bux rai. this partial partition was followed by complete partition on june 1, 1943.2. when the excess profits tax officer took up assessments for the three chargeable accounting periods, he took the view that the main purpose of the partial partition was to avoid excess profits tax liability. he, therefore issued a notice to the assessee-firm calling upon it to show cause why necessary adjustment should not be made under section 10a of the act. the assessee replied that the partition in the family of gur bux rai was genuine ; and section 10a could not be invoked. this objection was overruled by the excess profits tax officer. that decision was upheld in appeal by the appellate tribunal.3. the assessee-firm applied for a reference to the court. those applications were dismissed by the.....
Judgment:

V.G. Oak, C.J.

1. This is a reference under Section 66(2) of the Indian Income-tax Act, 1922, read with Section 21 of the Excess Profits Tax Act (hereafter referred to as ' the Act '). The assessee is a firm ' Gur Bux Rai Har Bux Rai'. The firm had two partners, Gur Bux Rai and Har Bux Rai, who owned equal shares. The chargeable accounting periods ended on June 21, 1944, July 10, 1945, and March 31, 1946. Up to July 14, 1942, the assessee-firm carried on business with head office at Kanpur and a branch at Farrukhabad. The Farrukhabad branch worked under the style ' Pussulal Jangalal', There was partial partition in the family of one partner, Gur Bux Rai, on July 14, 1942. The result of this partial partition was this. Whereas formerly Gur Bux Rai represented his joint Hindu family in the business, after July 14, 1942, Gur Bux Rai was a partner in the Kanpur business in his individual capacity. As regards the branch business at Farrukhabad, his wife, Chameli Devi, and minor son, Gopal Das, were substituted for Gur Bux Rai. This partial partition was followed by complete partition on June 1, 1943.

2. When the Excess Profits Tax Officer took up assessments for the three chargeable accounting periods, he took the view that the main purpose of the partial partition was to avoid excess profits tax liability. He, therefore issued a notice to the assessee-firm calling upon it to show cause why necessary adjustment should not be made under Section 10A of the Act. The assessee replied that the partition in the family of Gur Bux Rai was genuine ; and Section 10A could not be invoked. This objection was overruled by the Excess Profits Tax Officer. That decision was upheld in appeal by the Appellate Tribunal.

3. The assessee-firm applied for a reference to the court. Those applications were dismissed by the Appellate Tribunal. But upon applications under Sections 66(2) of the Indian Income-tax Act, 1922, this court directed the Appellate Tribunal to draw up a statement of the case and refer to this court the question arising out of Section 10A of the Act. In parsuance of that direction, the following question has been referred to this court by the Appellate Tribunal:

' Whether, on the facts and circumstances of this case, the transaction in question was one which could be avoided under Section 10A of the Excess Profits Tax Act? '

4. When this reference camp up before this court on April 7, 1960, a Bench of this court took the view that the question referred by the Tribunal did not arise out of the appellate decision of the Tribunal. On this view, the reference was returned unanswered. The assessee took up the matter in appeal before the Supreme Court. The assessee's appeal was allowed by the Supreme Court on Augnst 2, 1968. It was held that the question referred by the Tribunal did arise out of the appellate decision of the Tribunal. The case, was therefore, sent back to this court for determination of the question, which was referred by the Tribunal. It is under these circumstances that this question has come up before us for disposal. We accordingly proceed to answer the question.

5. The question before this court raises the question of applicability of Section 10A of the Act. Sub-section (1) of Section 10A of the Act states :

' Where the Excess Profits Tax Officer is of opinion that the main purpose for which any transaction or transactions was or were effected .... was the avoidance or reduction of liability to excess profits tax, he may, .... make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions.'

6. The main contention of Mr. Brijlal Gupta appearing for the assessee is that after the partition in the family of Gur Bux Rai a new business came into existence. The assessee-firm cannot be held liable for the income from this new business. In support of this contention, reference was made to Sections 4 and 5 of the Act. Section 4 provides for charge of tax. Section 5 provides for application of the Act. It was urged for the assessee that Section 5 of the Act does not apply to the new business.

7. Reliance was placed upon a decision of the Supreme Court in Sohan Pathak and Sons v. Commissioner of Income-tax, [1953] 24 I.T.R. 395 (S.C.). In that case the appellants constituted a Hindu undivided family consisting of four branches representing four sons of Sohan Pathak deceased. The family carried on business at Banaras in money-lending and Banaras brocade under the name and style of Sohan Pathak & Sons. In the assessment relating to the chargeable accounting period ending on October 8, 1943, the appellants alleged that there was a partial partition among the members of the family on July 16, 1943, whereby the Banaras brocade business was divided in equal shares among the four branches, and that on the next day the adult members of the family formed two partnerships admitting the minors to the benefits thereof. Thereafter the business was carried on in Banaras brocade under the respective firm names, Sohan Pathak Girdhar Pathak and G. N. Pathak & Co. The appellants claimed that the family as such ceased to do business in Banaras brocade after October 16, 1943. The Excess Profits Tax Officer took action under Section 10A of the Act. In dealing with the applicability of Section 10A of the Act to the case their Lordships observed on pages 399 and 400 thus :

' The real and substantial question in the appeals is whether in view of the finding of fact that the old family business was wound up, its assets and liabilities having been actually distributed among the coparceners, and was no longer carried on by the joint family as such during the relevant chargeable accounting periods Section 10A has any application to the case ....it is thus manifest that the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period. In other words, if a business, having been discontinued, earned no profits during the chargeable accounting period in question, no excess profits tax can be charged in respect of such business, and that being the position here as respects the old joint family business in Banaras brocade, the appellants are not liable to be taxed as a Hindu undivided family in respect of that business.'

8. In that case there were three questions of law before the court. Question No. 1 ran thus :

'Whether in view of the fact that the partial partition had been accepted by the Income-tax Officer and the business was treated as having been discontinued for the purpose of assessment under the Income-tax Act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of Section 10A of the Excess Profits Tax Act read with Sections 4 and 5 of the same Act ?'

9. The passage relied upon by Mr. Brijlal Gupta has to be read with reference to question No. 1 before the court. It will be noticed that in that case the assessee was a joint family firm, Sohan Pathak & Sons. The old business of that firm was taken over by two new firms, Sohan Pathak Girdhar Pathak and G. N. Pathak & Co. In the instant case the old firm Gur Bux Rai Har Bux Rai has not disappeared altogether. The same firmcontinues to handle the business at Kanpur. Although there has been some charge in the constitution of the firm working at Farrukhabad, the nature of the business has not been changed. Thus the facts of the present case are somewhat different from those in Sohan Pathak's case.

10. In Commissioner of Excess Profits Tax v. Moholal Maganlal, [1953] 23 I.T.R. 45 it was held by the Bombay High Court that selling agency business of a limited company in an Indian State was not subject to excess profits tax by virtue of the third proviso to Section 5 and, therefore, the provisions of Section 10A could not be invoked. In that case the business was transferred to Baroda State. It was, therefore, held that the business was protected by the third proviso to Section 5 of the Act. Consequently Section 10A was not attracted. In the present case there is no question of exemption under the third proviso to Section 5.

11. Mr. Brijlal Gupta also relied upon Sections of the Act. Sub-section (1) of Section 8 states.

' As from the date of any change in the persons carrying on a business, the business shall, subject to the provisions of this section, be deemed for all the purposes of this Act except for the purposes of determining the amount of the statutory percentage to have been discontinued, and a new business to have been commenced.'

12. Mr. Brijlal Gupta urged that, in view of the partition in the family of Gur Bux Rai, the case fully falls under Sub-section (1) of Section 8 of the Act.

13. We have seen that, although there was an alteration in the constitution of the firm working at Farrukhabad, there was hardly any change in the constitution of the firm working at Kanpur. The only change there was that formerly Gur Bux Rai represented his undivided Hindu family, whereas after July, 1942, he was a partner in the firm in his individual capacity. But at both the stages Gur Bux Rai and Har Bux Rai were the partners of the firm.

14. Sub-section (5) of Section 8 deals with a situation where part of a business is 'transferred as a going concern to another person. In the present case the business at Farrukhabad was formerly represented by Gur Bux Rai and Har Bux Rai. After July, 1942, the business at Farrukhabad was represented by Har Bux Rai, Chameli Devi and Gopal Das, minor. This change was confined to a part of the business carried on by the assessee firm before July, 1942. It may be that a partition is not a transfer in the strict sense. Nonetheless, the present case may fall under Sub-section (5) of Section 8 of the Act.

15. Reliance was placed upon a decision of the Madras High Court in Arunachala Nadar v. Commissioner of Excess Profits Tax, [1957] 32 I.T.R.222. In that case a Hindu undivided family was being assessed as such until January 27, 1942. When a partition was effected under which the four adult sons of the karta formed one group and the karta and his undivided minor sons formed another group. On the application of the karta an order under Section 25A of the Income-tax Act, recognizing disruption of the family was made by the Income-tax Officer. After the partition the karta started new business, and in assessing the income of the karta's group he claimed that the deficiency in profits of the family during the years prior to January, 1942, must be taken into account. The Excess Profits Tax Officer took action under Section 10A of the Act. The claim of the karta for adjustment of the previous loss and the applicability of Section 10A of the Act were the subject-matter of a series of references before the court. It was held by the Madras High Court that the karta was not entitled to claim the deficiencies of the old business which ceased on January 27, 1942. The High Court held that the Tribunal was right in coming to the conclusion that formation of a certain partnership was for avoidance of excess profits tax. Arunachala Nadar took up the matter before the Supreme Court in a number of appeals. These appeals were dismissed by the Supreme Court. It is true that the Supreme Court was not directly called upon to decide the question of applicability of Section 10A of the Act to the facts of the case. But the question remains that the Tribunal's decision applying Section 10A of the Act was not disturbed.

16. Section 8 of the Act deals with successions and amalgamations. Section 10A of the Act deals with transactions designed to avoid or reduce liability to excess profits tax. The provision of Section 8 is of a general nature, whereas the provision contained in Section 10A of the Act is for a special purpose. It is possible to take the view that the special provision contained in Section 10A overrides the general provision contained in Section 8 of the Act. In view of all these considerations, the assessee can derive little assistance from Section 8 of the Act.

17. The appellate order of the Tribunal is dated February 14, 1952. The Tribunal concluded thus :

'In our opinion there being no other reason the Excess Profits Tax Officer was right in holding that the main purpose was to avoid the excess profits tax liability.'

18. We must accept this finding recorded by the Tribunal.

19. Mr. Brijlal Gupta pointed out that in addition to the partial partition of July, 1942, there was also a total partition in June, 1943. The Tribunal was fully aware of these two transactions. The Tribunal must have recorded its ultimate finding with reference to both these transactions. We, therefore, take it that when the Tribunal concluded that the main purpose was toavoid the excess profits tax liability, the finding covered both the transactions of July, 1942 and June, 1943.

20. It cannot be seriously disputed that the partial partition and the total partition were transaction within the meaning of Section 10A of the Act. It has been found that these transactions were for the avoidance of excess profits tax liability. The department has succeeded in bringing the case under the first part of Sub-section (1) of Section 10A of the Act. The assessee must, therefore, be prepared for the consequence mentioned in the latter part of Sub-section (1) of Section 10A of the Act.

21. Mr. Brijlal Gupta pointed out that the applicability of Section 10A came up for consideration before this court in another reference. The case is Gurbux Rai Harbux Rai v. Commissioner of Income-tax, [1969] 58 I.T.R.392. In that case it was observed by the court on page 400 :

'If, as have held, the Excess Profits Tax Officer was not competent to take proceedings under Section 15 of the Excess Profits Act, it was not open to him to apply the provisions of Section 10A in the proceedings upon re-opening the assessment under Section 15. An order under Section 10A can be passed only where the Excess Profits Tax Officer is seized of jurisdiction in a pending assessment proceeding.'

22. The main question for consideration in that reference was the competance of action under Section 15 of the Act. It was found that such action was not competent. It was, therefore, held that the Excess Profits Tax Officer had no jurisdiction in the matter. In the present reference no question of jurisdiction arises. We have to answer the question which is actually before us in the instant reference. We are not concerned with the decision of the case between the parties reported as Gurbux Rai Harbux Rai v. Commissioner of Income-tax. It will be for the Tribunal to give effect to the two decisions of the court in the two separate references.

23. We answer the question referred to this court in the affirmative, and against the assessee. The assessee shall pay the Commissioner of Income-tax,U. P., Rs. 200 as costs of this reference.


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