Commissioner of Income Tax vs Rasiklal C. Nagri

R.C. Mankad, J.—The assessee is an individual and the assessment year index reference are 1968-69 to 1970-71. The assessee and his

wife, Savitaben, were partners in the firm, Messrs. Pari Chimanlal Harilal. In his return of income for each of the assessment year under reference,

the assessee had appended a note to the effects that interest income earned by his wife, Savitaben, from the firm of Messrs. Pari Chimanlal Harilal

was not shown, relying on the decision of the Income Tax Appellate Tribunal (""the Tribunal"" for short) for the assessment year 1960-61. The

Income Tax Officer, while framing the Income Tax assessment, included the share income which Savitaben had received from Messrs. Pari

Chimanlal Harilal in the total income of the assessee in each of the years under reference. He, however, did not include the interest received by

Savitaben from the said firm in the assessee''s total income. After the Income Tax assessments were complete, the Income Tax Officer issued

notice u/s 148 read with section 147 of the Income Tax Act, 1961 (the ""Act"" for short), seeking to reopen the Income Tax assessments for the

years under reference. There is a controversy as to whether the reopening of the assessments was under clause (a) or clause (b) of section 147 of

the Act. According to the Revenue, the assessments were sought to be reopened under both the said clauses.

The assessee resisted the action of the Income Tax Officer in reopening is Income Tax assessments and contended that he had disclosed all the

primary facts fully and truly and that, therefore, there was no justification to reopen the assessment. The Income Tax Officer, in his assessment

orders passed u/s 143(3) read with section 148, held that, in the instant case, ""the capital investment made by Smt. Savitaben in the firm of

Messrs. Pari Chimanlal Harilal was her capital with the firm and interest was paid by the firm on the said capital. The income is, therefore derived

by her as she is a partner in the firm in which her husband is a partner"". The Income Tax Officer held that, in these circumstance, the interest paid

to Savitaben by the firm is taxable in the hands of the assessee. The Income Tax Officer held that, as the assessee had not disclose all primary fact

for the purpose of assessment, the proceedings were right initiated.

In the appeal preferred by the assessee, the Appellate Assistant Commissioner held that the assessee had in his returns of income, attached a

note referred to above and the Income Tax Officer had, after applying his mind to the returns so filed by the assessee, completed the assessments

without assessing the interest income received by Savitaben from the firm as part of the income of the assessee. The Income Tax Officer had, in the

assessments framed against the assessee, included the share income received by Savitaben in the assessee''s total income. The assessed had not

included the interest income receive by Savitaben from the firm relying on the decision to the Tribunal for the assessment year 1960-61. In the light

of the above facts, the Appellate Assistant Commissioner held that the assessee had disclose all the primary facts in the course of the original

assessment proceeding. He further held that the Income Tax Officer had relied on any new information or fact apart from the facts which were

before him in the original assessment proceedings. Under the circumstance, the Appellate Assistant Commissioner held that the action to Income

Tax Officer in resorting to the provisions of section 147(a) was bad in law and not suitable In the result, the Appellate Assistant Commission

canceled the reassessments made by the Income Tax Officer. In the appeals preferred by the Revenue, the Tribunal confirmed the view a taken by

the Appellate Assistant Commissioner.

Being aggrieved by the decision of the Tribunal, the Revenue sought reference and, at its instance, the following questions have been referred to

us, for our opinion, u/s 256(1) of the Act :

(1) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that reopening of the

original assessment u/s 147(a) of the Income Tax Act, 1961, was not justified ?

(2) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not entertaining the ground

regarding validity of reopening of assessment u/s 147(b) of the Income Tax Act, 1961 ?

(3) If question No. (2) is answered in the negative and in favour of the Revenue, was the Tribunal, on the facts and circumstances of the case, right

in law in holding that reopening of the assessment was not sustainable even u/s 147(b) of the Income Tax Act ?

It is clear from the facts stated above that while filing the returns of income for the years under reference, the assessee had included in his total

income the share income received by his wife, Savitaben, from the firm of Messrs. pari Chimanlal Harilal and not included the interest income

received by her from the said firm, stating in the note appended to the returns that such interest income was not included in his total income in view

of the decision of the Tribunal for the assessment year 1960-61. It would thus appear that (i) the assessee had included Savitaben''s share income

from the firm in his total income; and (ii) he had not included the interest income received by savitaben from the said firm. The assessee had

declared that Savitaben had received both the share income and the interest income from the firm. In other words, the Income Tax Officer, while

framing the original assessments, had known that the assessee''s wife, Savitaben, had received two kinds of income, namely, share income and

interest income, from the firm of Messrs. Pari Chimanlal Harilal. He also knew that while the assessee had included Savitaben''s share income in his

total income, he had not included her interest income in his total income. Therefore, as rightly held by the Tribunal, all the primary facts necessary

for his assessment were disclosed by the assessee in the original assessment proceedings. The Income Tax Officer, as it clearly appears from the

reasons recorded by him while reopening the Income Tax assessments for the years under reference in his reassessment orders passed u/s 143(3)

read with section 148, had reopened the assessments on the ground that the assessee had not fully and truly disclosed the primary facts when the

original assessments were made. As already pointed out above, the assessee had disclosed all the primary facts necessary for his Income Tax

assessments and, therefore, there was no reason or justification to reopen the assessments u/s 147(a) of the Act. The Income Tax Officer had not

received any new information which would have justified the reopening of the assessments u/s 147(b). Therefore, assuming for the sake of

argument, that the Income Tax Officer had also sought to reopen the assessments u/s 147(b), there is nothing on record to show that the Income

Tax Officer received some information which was not known to him at the time of making the original assessments which would justify reopening of

the assessments under the said provision. The Income Tax Officer has nowhere stated what information be received after he completed the original

assessments. There is, therefore, no doubt that there is no reason or justification to reopen the assessments u/s 147(b) also.

In the result, we answer all the three questions referred to us in the affirmative and against the Revenue. Reference answered, accordingly, with

no order as to costs.