Skip to content


Sushil Kumar Vs. Income Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberC.M.W. No. 319 - Tax of 1976
Reported in(1980)18CTR(All)274
AppellantSushil Kumar
Respondentincome Tax Officer and ors.
Excerpt:
- .....das and sons, in which sri sushil kumar was a member. a partial partition took place and shri sushil kumar was allotted his share in the ancestral assets. with the aid of the assets received on the partition, sri sushil kumar, who was minor, was admitted to the benefit of a partnership in a registered partnership in a registered partnership firm known as clarks hotel, varanasi. the petitioner continued to be assessed in his individual capacity. apart from the income from the assets, sushil kumar started enjoying an income from salary and commission. in february, 1965 sushil kumar got married and according to the petitioner a separate huf was formed of which sri sushil kumar was a karta. however, upto the year 1971 he continued to file one single income-tax return in the status of an.....
Judgment:

1. JUDGMENT : B. N. Sapru, J. - According to the petitioner there was a HUF named as Bawan Das and Sons, in which Sri Sushil Kumar was a member. A partial partition took place and Shri Sushil Kumar was allotted his share in the ancestral assets. With the aid of the assets received on the partition, Sri Sushil Kumar, who was minor, was admitted to the benefit of a partnership in a registered partnership in a registered partnership firm known as Clarks Hotel, Varanasi. The petitioner continued to be assessed in his individual capacity. Apart from the income from the assets, Sushil Kumar started enjoying an income from salary and commission. In February, 1965 Sushil Kumar got married and according to the petitioner a separate HUF was formed of which Sri Sushil Kumar was a Karta. However, upto the year 1971 he continued to file one single income-tax return in the status of an individual showing therein all his income whether received as a Karta of the family as also the income earned in his individual capacity. It is the petitioners case that Sushil Kumar became aware of the position that he was entitled to file two separate returns, one of the HUF and the other in his individual capacity in the year 1971 and according to the petitioner, Sushil Kumar filed two revised returns for the asst. yrs. 1968-69, 1969-70 and 1970-71, which were then pending assessment. It may be added that according to the petitioner, the returns for these years had previously been filed by him in his individual capacity and advance tax had been paid. In the revised returns, the petitioner bifurcated his income showing the salary and commission income as Sushil Kumars individual income and the income of the HUF separately. The ITO accepted the contention of Sushil Kumar that the income arising from ancestral assets was the income of the HUF, of which Sushil Kumar was the Karta, while the income from the salary and commission etc. was the individual income of Sushil Kumar and passed the assessment orders accordingly.

2. The ITO was, however, of the view that the HUF has filed late returns of its income and that it had not paid the advance tax within time. The ITO refused to give credit to the HUF of advance tax deposited by the petitioner in his individual capacity. The ITO also refused to treat the return filed by the HUF as a revised return. The ITO proceeded to levy interest for the late filing of the returns u/s 139(1) of the IT Act and for failure to pay advance tax u/s 271(1) of the Act. The ITO also issued notices u/s 217(b) to impose penalty for failure to pay advance tax.

3. Against the adverse orders of the ITO, which levied interest u/s 217 and u/s 139(1) of the Act for the asst. yrs. 1968-69 and 1969-70 , the petitioner filed appeals but the AAC of IT rejected the appeals on the ground that no appeal lay against the levy of interest either u/s 217 or u/s 139(8). The AAC, however, deleted the interest charged u/s 139(1).

4. Against the order of the AAC, both, the petitioner and the Department, went up in Appeal before the IT Appl. Tribunal. The appeal of the petitioner was rejected. The Tribunal, however, allowed the appeal of the Department on the ground that the AAC had no jurisdiction to entertain an appeal against the levy of interest. The petitioner thereupon asked for a reference u/s 256(1) of the IT Act and the Tribunal made a reference for the asst. yr. 1968-69 and 1969-70.

5. According to the petitioner, the question with regard to the maintainability of the appeal had been referred to the High Court, but the Tribunal had not referred the matter to the High Court regarding the levy of interest u/s 139(1) and penalty u/s 217(1) of the Act. Thereafter the petitioner made an application u/s 154 of the IT Act to the ITO contending that interest under two hands were charged by the ITO, without applying his mind to the question of waiver u/s 139(8) r/w r. 117-A(v) and s. 217(2) r/w r. 40(5). This application was rejected by the ITO on the ground that there was no apparent mistake on the record.

6. Subsequently appeals for the years 1970-71 & 1971-72 came up before the AAC of IT, who dismissed the assessees appeal holding that no appeal lay. The petitioner appealed to the ITAT against the aforesaid order and the appeal was rejected by the Tribunal. The petitioner, subsequently, made an application u/s 253(1) to the IT Appl. Tribunal and the Tribunal agreed to make a reference to the High Court.

7. The petitioner has by this writ petition sought quashing of the order of the ITO u/s 154 of the IT Act and also for a mandamus commanding the ITO to decide the application u/s 154 in accordance with law or to waive the interest for the asst. yrs. in question. The petitioner also sought writ of prohibition commanding the ITO not to recover from the petitioner interest u/ss. 139 and 217 for the asst. yrs. 1969-69 to 1971-72 and to refund such amount as had been recovered from the petitioner. Subsequently, the petitioner sought an amendment, which was allowed, for quashing of the orders of AAC and the Appl. Tribunal. As far as the order of the ITO u/s 154 of the IT Act is concerned, the petitioner had an alternative remedy by way of revision to the CIT. The petitioner has not availed of that remedy and there is no reason why this Court should interfere u/s/Art. 226 of the Constitution with the order of the ITO, when the petitioner has an adequate alternative remedy.

8. As far as the relief of quashing of the order of the AAC and the IT Appl. Tribunal are concerned, the order of the AAC merged in the order of the Tribunal. The petitioner could have sought a reference to this Court, but he has not done so. There is no reason to depart from the normal rule that where the statutory remedy is available to the petitioner, this Court will not interfere in the exercise of its power u/Art 226 of the Constitution.

9. In the result, the writ petition fail and it is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //