Commissioner of Income Tax vs Onkar Nath Gupta

S.P. Goyal, J.—This judgment will dispose of three Income Tax Cases Nos. 9, 10 and 11 of 1978 as they involve a common question of law, though relating to three different assessment years.

The assessee, an individual, entered into a partnership along with his wife, Shrimati Madhuri Gupta, on July 1, 1965, with certain other persons to form the firm, M/s. Roop Textile Industries, Rohtak. For the assessment year 1967-68, the assessee declared salary income, his own share of profits and those of his wife from the said firm and the assessment was completed accordingly. On October 16, 1967, the assessee declared through an affidavit that he was the karta of a Hindu undivided family consisting of himself, his wife and his two sons, Rakesh and Rohit, and alleged to have thrown the following in the common hotchpotch of the Hindu undivided family :

"(i) Rs. 5,000 which stood credited to his capital account in the books of the said firm ;

(ii) Rs. 3,000 which stood credited to his loan account; and

(iii) 15 per cent share in the said firm."

He filed his returns of income for the assessment years 1968-69 to 1970-71 in the status of an individual showing income from salary, etc., but he did not declare his income nor that of his wife from the said firm. However, in Part IV of the return, he entered the income received on account of the share of his wife and contended that since the assessee was a partner in the said firm as manager and the karta of the Hindu undivided family and not in his individual capacity, the provisions of Section 64 of the Income Tax Act (for short, called "the Act"), were not applicable. Assessments for all the said years were completed on January 21, 1971, without including the share income from the aforesaid firm either of the assessee or of his wife. The Income Tax Officer, on the facts and circumstances noticed above, being of the view that the profits could not legally be thrown into the hotchpotch so as to convert them into the property of the Hindu undivided family, passed a rectification order on January 20, 1975, for all the three years and included the share of profits of the so-called Hindu undivided family from M/s. Roop Textile Industries in the individual income of the assessee. On appeal by the assessee, his order was set aside by the Appellate Assistant Commissioner. The Revenue went up in appeal against the order of the Appellate Assistant Commissioner before the Tribunal but failed. The application filed u/s 256(1) of the Act having been also dismissed, the Revenue filed the present petition u/s 256(2) for a mandamus to get the following question referred :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that there was no mistake apparent from the records which required rectification ?"

The point of law involved in the above-noted question has since been settled by this court in Commissioner of Income Tax Vs. Anand Sarup, , wherein, on similar facts, it was ruled that no mistake apparent on the record can be said to be there which could entitle the Income Tax Officer to resort to the rectification provisions. The point of law involved, thus, having been already settled by this court, it would be futile to issue the mandamus prayed for. These petitions are accordingly dismissed but without any order as to costs.