Commissioner of Income Tax vs V.K. Vivekanandan

N.V. Balasubramanian, J.

At the instance of the revenue, the following question of law has been referred for the assessment year 1980-81 of the assessee.

Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is correct in law in holding that jackpot winnings cannot be

assessed in the status of Body of Individuals/Association of Persons and it should be assessed separately in the hands of the members in their

individual capacity ?

The tax case is pending on the file of this court from the year 1990 and when the matter earlier came up before this court on 5-6-2002, we

found that there was no representation by the respondent. Hence, we permitted the counsel for the revenue to serve notice on the respondent by

private service returnable in three weeks.

Mr. T.C.A. Ramanujam, the learned senior standing counsel appearing for the revenue, submitted that in pursuance of the direction of this court

dated 5-6-2002, the Income Tax Officer who had jurisdiction of the matter had deputed an Inspector of Income Tax, Mr. V. Selvaraj, to serve a

notice as directed by this court on the respondent. The Income Tax Officer by letter dated 26-6-2002 has stated that the inspector went to the

address of the respondent, he verified from the neighbours also and has reported that the respondent was not available at the last known address

and the present address is also not known to neighbours. Hence, he has stated that the notice could not be served on the assessee and the same

was returned.

We find that the revenue has taken all possible steps to serve notice on the respondent. But inspite of best efforts taken by the revenue, notice

could not be served and the assessee has not informed the change of address. Hence, we hold that there was valid service of notice on the

respondent.

On the merits of the case, we find that the Tribunal has decided the issue against the revenue on the ground that after an assessment is made on

an individual member of the BOI, the Income Tax Officer has no option left with him to make a direct assessment on the BOI. The Tribunal while

taking the above view, has followed the decision of this court in the case of COMMISSIONER OF Income Tax, MADRAS-II Vs. BLUE

MOUNTAIN ENGINEERING CORPORATION., . It is stated that the decision rendered by this court in Blue Mountain Engg. Corpn. case

(supra) was reversed by the Supreme Court in Income Tax Officer Vs. Atchaiah, . In view of the decision of the Supreme Court, it is clear that it is

open to the assessing officer to proceed either against the individuals who constituted the BOls or BOI and the fact that an assessment was made

in the hands of the member is not a ground to hold that the Income Tax Officer lacks jurisdiction to proceed against the BOI. Hence, the order of

the Tribunal taking the view that the Income Tax Officer lacked the jurisdiction is not sustainable in law. We find that the Tribunal while taking the

view that the Income Tax Officer lacked jurisdiction, has not gone into the question whether the winnings from jackpot can be assessed in the

hands of the BOls on the merits of the case. Though we answer the question of law referred to us in favour of the revenue, we direct the Tribunal

to consider the question on merits of the case in accordance with law. The reference is disposed of accordingly. No costs.