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Sudsons Construction Co. Vs. Addl. Commissioner of Income-tax, New Delhi - Court Judgment

LegalCrystal Citation
Subject Direct Taxation
CourtDelhi High Court
Decided On
Case NumberIncome-tax Reference No. 147 of 1974
Judge
Reported in[1983]140ITR634(Delhi)
Acts Income Tax Act, 1961 - Sections 2(31), 4, 155 and 183; Income Tax Act, 1922 - Sections 3
AppellantSudsons Construction Co.
RespondentAddl. Commissioner of Income-tax, New Delhi
Excerpt:
- .....basing himself on these returns the ito assessed the firm to tax as an unregistered firm for the assessment years 1967-68 to 1968-69 by orders passed on january 28, 1971. 2. the assessed filed appeals to the aac, and, before the aac, took up a plea for the firsts time that the assessments of the firm as such were invalid for the reason that two of the partners. shri g. m. sud and shri virender sud have been separately assessed for each of these years and that these assessments had been completed prior to january 28, 1971. this argument based on certain decisions given under the 1922 act were rejected by the aac and thereafter by the appellate tribunal. in the circumstances, the assessed has obtained this reference to this court. the common question of law framed for both these years.....
Judgment:

Ranganathan, J.

1. This is a consolidated reference under the I.T. Act for the assessment years 1967-68 and 1968-69 at the instance of the assessed, M/s. Sudsons Construction Co. The assessed was a firm which was assessed as a registered firm for the assessment year 1966-67. But for the two subsequent years with which we are concerned the firm did not seek any registration or the benefit of continuance of registration but instead filed returns in the status of unregistered firms. Basing himself on these returns the ITO assessed the firm to tax as an unregistered firm for the assessment years 1967-68 to 1968-69 by orders passed on January 28, 1971.

2. The assessed filed appeals to the AAC, and, before the AAC, took up a plea for the firsts time that the assessments of the firm as such were invalid for the reason that two of the partners. Shri G. M. Sud and Shri Virender Sud have been separately assessed for each of these years and that these assessments had been completed prior to January 28, 1971. This argument based on certain decisions given under the 1922 Act were rejected by the AAC and thereafter by the Appellate Tribunal. In the circumstances, the assessed has obtained this reference to this court. The common question of law framed for both these years was in the following terms:

'Whether, on the facts and in the circumstances of this case, the Tribunal was right in holding that the assessment on the unregistered firm could be validly made ?'

3. It is not necessary for us to discuss the matter at length because Shri S. B. Gupta, learned counsel for the assessed, was fair enough to bring to out notice that the issue has already been decided by this court in Punjab Cloth Stores v. CIT : [1980]121ITR604(Delhi) . That was a case concerning an association of persons but it is common ground that there is no material distinction in regard to the question before us between an unregistered firm and an association of persons. It is sufficient to extract a portion of the headnote of that decision:

'In terms of s. 4 of the Income-tax Act, 1961, tax is to be charged on the income of every person: The section does not say that income-tax shall be charged from an association of persons or its members individually as was the position under s. 3 of the 1922 Act. The definition of 'person' in s. 2(31) of the 1961 Act includes, among others, an individual as an entity seaport from an association of persons or body of individuals, whether incorporated or not. There is, thereforee, no bar under the 1961 Act against assessing an association of persons even though its members have already been assessed separately in respect of their respective shares of the income of the association for the same assessment year. On completion of the assessment of the income in the hands of the association, the earlier assessment of its members can be rectified under s. 155.'

4. In coming to this conclusion this court dissented from the decision of the Andhra Pradesh High Court in Ch. Atchaiah v. ITO : [1979]116ITR675(AP) and distinguished the decision of the Patna High Court in CIT v. Pure Nichitpur Colliery Co. : [1975]101ITR79(Patna) . Learned counsel for the applicant also stated that the madras High Court in CIT v. Blue Mountain Engineering Corporation : [1978]112ITR839(Mad) , has also taken a view in favor of the assessed. But since the matter is directly concluded by a decision of this court and since no circumstances have been brought to our notice which would justify the reconsideration of this issue by a larger Bench of this court, we think that we should follow the earlier decision of the Division Bench in the case of Punjab Cloth Stores. Doing so, we answer the question referred to us in the affirmative and against the assessed. In the circumstances, however, we make no order as to costs.


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