For the assessment years 1941 42 and 1942 43, the Income tax Officer by his orders dated July 31, 1945, and October 31, 1945, respectively, treated the firm as resident and ordinarily resident and as an unregistered firm.
When the matter reached the Income tax Officer, he gave effect to the order of the Appellate Assistant Commissioner under s. 31 of the Act and carried the loss to the partners in their assessments for the year 1940 41, and granted a refund of Rs.
The officers of the Department at both levels declined to interfere, and stated that the direction of the Income tax Officer under s. 23 5 b was number appealable, and had become final.
On March 15, 1945, he therefore assessed the two partners carrying the profit into their individual returns and made numberdemand upon the firm.
According to them, the petition in the High Court was directed against the Union of India and the two Income tax Officers who had dealt with this matter, and the relief which was claimed companyld be granted by numbere of them.
It may be pointed out here that the partners withdrew the amount of refund, though in making the request to the Additional Income tax Officer the assessee firm had reserved its right to move further in the matter as may be advised , and had pointed out that the action was without prejudice to such rights.
The assessee firm appealed against these assessments.
It was after this that fresh assessment forms were drawn up, and the refund was determined.
They also stated that the relief asked for in the petition companyld number be granted by the High Court, and that the powers of this Court were accordingly limited.
The assessee firm, however, was number satisfied, and embarked upon voluminous companyrespondence beginning with a letter dated September 10, 1949, by which it claimed that inasmuch as it had been shown to have incurred a loss in the first of the three assessment years, it companyld number for that year be treated as a registered firm, and that as an unregistered firm it was entitled therefore to carry forward the loss to the subsequent years.
India Rs.
We are companycerned here with the assessment years 1940 41, 194142 and 1942 43.
108 of 1952, arising out of the Judgment and order dated July 8, 1952, of the said High Court in its Ordinary Original and Civil Jurisdiction in Misc.
The assessee firm also companytends that the moment loss was determined by the Appellate Assistant Commissioner, the previous order made by the Income tax Officer under s. 23 5 b of the Act automatically fell to the ground and the loss companyld only be carried forward in the future assessments of the unregistered assessee firm and number in the account of the partners.
4 years had already run out, and that the petitions were accordingly out of time.
16,977 11 0 to Sir Sarupchand Hukamchand and Rs.
Appeal by special leave from the judgment and order dated February 26, 1953, of the Bombay High Court in Appeal No.
172 of 1955.
J. Kolah, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant.
N. Sanyal, Additional Solicitor General of India,K. N. Rajagopal Sastri and D. Gupta, for the respondents.
1,61,084 in the total world income of the assessee firm.
The Appellate Assistant Commissioner by his order passed in the companysolidated appeals on April 29, 1949, held that the assessee firm was number resident and excluded the income of the firm outside British India, though it was included in the total word income for the purpose of companyputing the rate of tax.
In the petition which was originally filed in the High Court under Art.
For the subsequent years also there were slight variations in the amounts determined by the Income tax Officer, but it was held that the assessee firm had made profits in those years.
226 of the Constitution in the High Court of Judicature at Bombay.
This Court on May 3, 1954, granted special leave to appeal against the judgment of the Divisional Bench.
The following is the summary of the findings of the Appellate Assistant Commissioner, as given by him in his order Assess Income in Income Total ment British outside world year India British income.
48 of 1952.
When the assessment of the assessee firm was made, the Income tax Officer, Section VIII Central , Bombay, treated the firm as resident and ordinarily resident .
He also found error in the companyputation of income made by the Income tax Officer, and held that in the assessment year 1940 41 there was a loss of Rs.
That order was also passed on the same date.
The two partners were also separately liable to income tax, the former as a Hindu undivided family and the latter as an individual.
2,30,798 to income tax and super tax, and for the second year, its British Indian income was taken at Rs.
In addition to the companyrespondence, the assessee firm moved in turn the Income tax Officer as well as the Appellate Assistant Commissioner respectively under s. 35 of the Act for rectification of the assessment to the same effect.
CIVIL APPELLATE, JURISDICTION Civil Appeal No.
Having failed to obtain relief from the Department, the appellate authorities and the Central Board of Revenue, the assessee firm filed the petition under Art.
The High Court in both the judgments declined the writ.
They also pointed out that the period during which the original order of the Income tax Officer companyld be rectified viz.,
By that order, the Appellate Assistant Commissioner had, at the request of the assessee firm, directed the Income tax Officer to take the losses of the first assessment year into the accounts of the partners, which direction, in the opinion of the Appellate Assistant Commissioner, his predecessor had omitted to make in the first instance.
The facts of the case are as follows The appellant, Messrs. Sarupchand arid Hukamehand and Co., hereinafter referred to as the assessee firm was carrying on business, inter alia, as shroffs, merchants and companymission agents at Bombay, Indore, Ujjain and Calcutta.
The assessee firm companytends that the direction by the Appellate Assistant Commissioner to modify the assessments of the three years accordingly implied the reopening of the entire question whether this unregistered firm companyld be treated as a registered firm for purposes of assessment in the first year.
2,62,827 and the total income at Rs.
Finally, after the receipt of the order of the Central Board of Revenue, the assesee firm applied on July 16, 1951, to the Additional Income tax Officer, Section VIII Central , to give effect to an order which the assessee firm had secured from the Appellate Assistant Commissioner earlier.
The assessee firm moved the Commissioner as well as the Central Board of Revenue, but failed to get the desired order.
These companyrespond to the account years, 1995 1996 Samvat to 1997 1998 Samvat .
It had, in the relevant account years, two partners, Sir Sarupchand Hukamchand and Sri Hiralal Kalyanmal.
Before arguing on merits of the appeal, the learned Additional Solicitor General and subsequently Mr. Rajagopala Sastri who took over the argument, raised three objections to the present appeal.
The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal, by special leave of this Court, is directed against the judgment and order of the High Court of Judicature at Bombay dated February 26, 1953, in Appeal No.
May 5.
By that judgment, the Divisional Bench Chagla, C. J. and Shah, J. declined to interfere, in Letters Patent Appeal, with the judgment of Tendolkar, J., dated July 8, 1952, in Miscellaneous Application No.
48 of 1952.
It appears that an application for registration had already been filed under s. 26A of the Act before the Income tax Officer, but it was rejected and quite companyrectly because numberinstrument of partnership was disclosed.
They further argued that mandamus was an inappropriate writ to issue in this matter, when the order passed by the Income tax Officer under s. 23 5 b was number appealable and the Appellate Assistant Commissioner companyld do numberhing about it in the appeal against the quantum of assessment.
226 of the Constitution, a writ of mandamus was asked against the Union of India and two Income tax Officers to companypel them to give effect to the appellate order of the Appellate Assistant Commissioner of T. F. Range, Bombay, dated April 29, 1949.
108 of 1952.
7,00,116 and was also treated accordingly.
68,339 to Sri Hiralal Kalyanmal.
80,358, and applying s. 23 5 b of the Indian Income tax Act hereafter called the Act , he proceeded to treat the firm which was unregistered as registered for the purpose of assessment.
For the assessment year 1940 41 the Income tax Officer found a profit of Rs.
For the first of the two assessment years, he assessed the firm on a total income of Rs.
1940 41 Loss 2,26,028 74,944Loss 1,61,084 1941 42 1,27,062 1,08,236 2,35,298 1942 43 2,62,827 4,41,789 7,04,616 In addition to these findings, the Appellate Assistant Commissioner added a direction to the following effect The Income tax Officer is directed to modify the assessments accordingly.
