Skip to content


income-tax Officer Vs. Saradbhai M. Lakhani and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtSupreme Court of India
Decided On
Judge
Reported in(2000)161CTR(SC)298; [2000]243ITR1b(SC); (2000)10SCC371
ActsIncome Tax Act, 1961 - Sections 148 and 147(b)
Appellantincome-tax Officer
RespondentSaradbhai M. Lakhani and anr.
DispositionPetition dismissed
Excerpt:
- customs act, 1962 -- sections 28(1) proviso & 114a: [ashok bhan & dalveer bhandari, jj] recovery of duty and levy of penalty held, penalty under section 114a is impossible only when the demand is confirmed under the proviso to section 28(1). in view of the clear findings of the commissioner that the respondent/assessees are not guilty of suppression of facts or are guilty of collusion or mis-statement and, therefore, duty cannot be imposed by invoking the extended period of limitation. when the duty itself cannot be imposed, no order of imposing the penalty under section 114a of the customs act can be sustained. .....year 1988-89 was sought to be reopened.4. the reason for reopening of the assessment was that the gujarat high court in banyan and berry v. c1t : [1996]222itr831(guj) , had held that after dissolution of the partnership firm, the assessment could be only in the hands of the erstwhile partners.5. the income was computed on the basis of the award of the arbitrator in favour of the firm. the amount received was apportioned amongst the partners and it is on this basis that the income was sought to be assessed in the hands of the partners.6. the high court quashed the notice under section 148 by observing that in the absence of mention of the judgment of the gujarat high court in banyan and berry's case : [1996]222itr831(guj) , it was not open to the income-tax officer to justify the order.....
Judgment:

1. Special leave granted.

2. Heard the learned Attorney-General for the appellant.

3. This is an appeal against the judgment of the Gujarat High Court which had allowed a writ petition filed by the respondent who had challenged the notice issued under Section 148 of the Income-tax Act, 1961, whereby the respondent's assessment in respect of the year 1988-89 was sought to be reopened.

4. The reason for reopening of the assessment was that the Gujarat High Court in Banyan and Berry v. C1T : [1996]222ITR831(Guj) , had held that after dissolution of the partnership firm, the assessment could be only in the hands of the erstwhile partners.

5. The income was computed on the basis of the award of the arbitrator in favour of the firm. The amount received was apportioned amongst the partners and it is on this basis that the income was sought to be assessed in the hands of the partners.

6. The High Court quashed the notice under Section 148 by observing that in the absence of mention of the judgment of the Gujarat High Court in Banyan and Berry's case : [1996]222ITR831(Guj) , it was not open to the Income-tax Officer to justify the order by reference to the said decision.

7. It is evident that the aforesaid view of the High Court is not correct. This court has held that on the basis of the information which is received by the Income-tax Officer, reassessment proceedings can be initiated. The information which was received by the Income-tax Officer was the decision of the Gujarat High Court in Banyan and Berry's case : [1996]222ITR831(Guj) . When the Income-tax Officer became aware of this decision, he could initiate the proceedings under Section 147(b) as has been held by this court in A L. A. Firm v. CIT : [1991]189ITR285(SC) .

8. For the aforesaid reasons, we hold that the High Court was not right in allowing the writ petition filed by the respondent. Accordingly, the appeals are allowed and the judgment of the High Court is set aside the effect of which would be that the writ petition filed by the respondent would stand dismissed.

9. No order as to costs.


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