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Km. Sunita Gupta Vs. Assistant Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Reference No. 115 of 1976
Judge
Reported in(1982)27CTR(All)324; [1982]136ITR672(All); [1982]9TAXMAN264(All)
ActsIncome Tax Act, 1961 - Sections 160, 160(1), 160(2), 161, 166 and 275; Taxation Laws (Amendment) Act, 1970
AppellantKm. Sunita Gupta
RespondentAssistant Commissioner of Income-tax
Appellant AdvocateR.K. Gulati, Adv.
Respondent AdvocateM. Katju, Adv.
Excerpt:
.....penalty on the minor herself was bad in law. in the present case, there is no whisper that both the minor as well as the representative assessee, namely, her guardian, had been assessed to..........learned counsel relied upon section 160 of the i.t. act for the proposition that, in the case of a minor, assessment could be done only as against the representative assessee. section 161 no doubt provides for the liability of a representative assessee. but section 166 is equally material. it provides : 'nothing in the foregoing sections in this chapter shall prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable, or the recovery from such person of the tax payable in respect of such income.' 5. section 160 is in chap. xv which is headed as 'liability in special cases'. section 166 is a proviso or exception, inter alia, to section 161. though, under section 161, assessment can be made on the representative assessee.....
Judgment:

Satish Chandra, C.J.

1. The Tribunal has submitted the statement of case and referred the following two questions of law for our opinion :

'1. Whether the amendment made in Section 275 of the Income-tax Act, 1961, which came into force from April 1, 1971, would extend the period of limitation in a case where the period of limitation had not expired when the amendment came into force

2. Whether, on the facts and in the circumstances of the case, the imposition of penalty on the minor was bad in law in view of the provisions contained in Section 160(1)(ii) read with Section 160(2)?'

2. The assessee. Km. Sunita Gupta, is a minor. Her natural guardian was her father, Sri P.K. Gupta. For the assessment year 1965-66, no estimate of advance tax as required by Section 212(3) of the Act was filed. The ITO issued notice and after hearing the assessee imposed penalty in the sum of Rs. 10,000 for this default. The assessee went up in appeal but failed. She then went up in further appeal to the Tribunal. There it was urged that the penalty order was passed beyond the prescribed period of limitation and that the assessment of the minor and the imposition of the penalty on the minor herself was bad in law. Both the points were repelled by the Tribunal. Hence, this reference at the instance of the assessee.

3. The assessment order for the relevant year was passed on 2nd of March, 1972. The order imposing the penalty is of 21st of March, 1974. Section 275, which prescribed the period of limitation was amended w.e.f. April 1, 1971. It provided a period of limitation of two years from the end of the financial year in which the proceedings, in the course of which action for imposition of penalty had been initiated, for assessment were completed. In view of this amendment, the penalty order in the present case could be passed till 31st of March, 1974. It was actually passed on 21st of March, 1974. It was within limitation; In Hargu Charan Srivastava v. CIT : [1979]119ITR622(All) , this court has held that the T.L. (Amend.) Act, 1970, which amended Section 275 with effect from April 1, 1971, enlarging the period of limitation to two years would apply to pending cases also in which the proceedings had not become closed or barred by limitation. This authority fully covers the present case. The first question, therefore, is answered against the assessee.

4. On the second question, learned counsel relied upon Section 160 of the I.T. Act for the proposition that, in the case of a minor, assessment could be done only as against the representative assessee. Section 161 no doubt provides for the liability of a representative assessee. But Section 166 is equally material. It provides :

'Nothing in the foregoing sections in this Chapter shall prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable, or the recovery from such person of the tax payable in respect of such income.'

5. Section 160 is in Chap. XV which is headed as 'Liability in special cases'. Section 166 is a proviso or exception, inter alia, to Section 161. Though, under Section 161, assessment can be made on the representative assessee in respect of a minor, yet, in view of Section 166, a direct assessment can equally be made on the minor. In the present case, there is no whisper that both the minor as well as the representative assessee, namely, her guardian, had been assessed to tax.

6. In the result, both the questions are answered in favour of the revenueand against the assessee. The Commissioner would be entitled to costswhich are assessed at Rs. 200.


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