Commissioner of Income Tax vs Dr. J.N. Bhatia

Jawahar Lal Gupta, J.

In pursuance of a direction given by this court, the Tribunal has referred the following question for the opinion of this court :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in affirming the order of the Appellate Assistant Commissioner of Income Tax holding that the income from the paying clinic should be taxed under the head ''Profits and gains of business or profession'' and not under the head ''Salary''?"

A similar question had arisen before this Bench in Income Tax Reference No. 47 of 1985. It has been answered in favour of the revenue by an order of 21-11-2001.

In the present case, it has been reported by the Registry that the respondent had passed away on 30-12-1988. The legal representatives have not been brought on record. Normally, we would have directed the counsel for the revenue to move for impleading the legal representatives. However, it has been very fairly pointed out by the learned counsel for the revenue that in respect of the assessment year 1981-82, the assessee had declared an income of Rs. 31,920. The assessing officer had determined the taxable income at Rs. 32,550. Similarly, for the assessment year 1982-83, the declared income was Rs. 36,450. The assessing officer had held it to be Rs. 54,900. The claim of the assessee was partly accepted by the Appellate Assistant Commissioner and the appeal filed by the revenue before the Tribunal was dismissed. It is not disputed that the tax effect of the decision in the case is really marginal. Thus, the counsel for the revenue has not really pressed for adjournment to enable him to implead the legal representative.

In view of this situation, we find no ground to interfere with the order passed by the Tribunal. The reference is, accordingly, returned unanswered.

No costs.