The judgment of the court was delivered by
M. S. MENON C.J. - This is an appeal by the Second Additional Income-tax Officer, Kozhikode, against the decision of Govindan Nair J. in O.P. No. 475 of 1962. The question for determination is whether the respondents are liable to pay the income-tax assessed on the Shrishaila Industrial and Spiritual Colony Charities for the assessment yeas 1950-51 to 1957-58.
The Shrishaila Industrial and Spiritual Colony Charities is a society registered under the Societies Registration Act, 1860, and has been assessed as an association of persons. The registration of the society was on June 1, 1949 and it is common ground that the respondents were members of the society at the time relevant to the assessments with which we are concerned.
According to the department there has been a discontinuance of the business of the society and the learned judge has directed that question should be investigated by the Income-tax Officer as far as the assessment year 1957-58 is concerned. If the business of the society has been discontinued, that discontinuance will affect not only the assessment year 1957-58 but also the other assessment years 1950-51 to 1956-57.
The discontinuance of the business of an association of persons will immediately attract section 44 of the Indian Income-tax Act, 1922. Under that section all the members of an association at the time of its discontinuance are jointly and severally liable to assessment and for the amount of tax payable where the assessment as been made on the association but the tax has not been recovered from it. As stated by Kanga in his Commentaried to the sectio :
'The section is not confined to the profits of only the year of discontinuance or dissolution but extends also to the profits of preceding years. Nor is the section confined to cases here an assessment has been made before the discontinuance or dissolution. The words tax payable in this section meant the tax which the firm or association would be liable to pay but for the discontinuance or dissolution or the tax either found to be due already or which may be found to be due in the future.' (The Law and Practice of Income-tax, fourth edition, volume I, page 751).
In the light of the contention of the department that there has been discontinuance of the business of the society all that is necessary is to affirm the direction in the judgment under appeal that the said question be investigated by the Income-tax Officer and amplify that judgment by saying that if there has been a discontinuance of the business of the society, then the respondents are jointly and severally liable for the payment of the tax in respect of all the assessment years with which we are concerned, namely, 1950-51 to 1957-58.
Counsel for the respondents submitted that two further questio :
'(1) Is a society like the Shrishaila Industrial and Spiritual Colony Charities registered under the Societies Registration Act, 1860, an association of person not liable to be taxed under the Indian Income-tax Act, 1922, as contended by the respondent and
(2) Even if such a society is liable to be taxed can the tax liability be impressed on the members of the society so long as the business of the society has not been discontinued and section 44 of the Indian Income-tax Act, 1922, is no attracte ?'
will arise for consideration and that they may be left open for future determination. We do so.
The writ appeal is disposed of as above; but in the circumstances of the case without any order as to costs.