PETITIONER: M. M. IPOH & ORS. Vs. RESPONDENT: COMMISSIONER OF INCOME-TAX, MADRAS DATE OF JUDGMENT: 26/07/1967 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. RAMASWAMI, V. CITATION: 1968 AIR 317 1968 SCR (1) 65 CITATOR INFO : R 1970 SC1589 (10) ACT: Income-tax Act, 1922, s. 3--Whether violative of Art. 14 of the Constitution--Quasi-Judicial function of Income-tax Officer in assessing income to tax and duty to prevent evasion--If constitute sufficient guidance--Individuals minor and firm trading together--Whether association of persons--Whether doctrine of res judicata applies to finding in assessment proceedings in one year in relation to proceeding for another year--Whether determination and declaration necessary as to who is principal officer of an association of persons before assessment proceedings take place. HEADNOTE: The Karta of a Hindu undivided family was assessed to Incometax from year to year until the assessment year 1953- 54 either as an individual or as the Karta. But later, the Income-Tax Officer issued notices to him under s. 34(1) of the Income-tax Act, 1922, for the assessment years 1951-52 to 1953-54 and under s. 22(2) for the years 1954-55 to 1956-57 for assessment of the income as having been received by an association of persons consisting of the Karta and his minor son in 1951-52, and the Karta, his minor son and a firm in the years 1952-53 to 1956-57, and assessed the income received as income and associations of persons. The Appellate Assistant Commissioner and the Tribunal, in appeals filed before them, substantially confirmed the order of the Income-tax Officer. The High Court, upon a reference. held that the income for the assessment year 1951-52 did E not accrue to an association of persons, but confirmed the view taken by the Income-tax Officer in respect of the income for the year- 1952-53 to 1956-57. The Karta then moved the High Court under Art. 226 of the Constitution and contended that s. 3 of the Income-tax Act, 1922, invested the Income-tax Officer with arbitrary and unguided power to assess the income of an association of persons in the hands either of the association or of the persons constituting that association and it therefore offended Art. 14 of the Constitution. The High Court rejected the petitions. In appeals to this Court against the decisions of the High Court in the writ petition and the reference under s. 66 of the Income tax Act. HELD:(i) S. 3 of the Income-tax Act, 1922, was not violative of Art. 14 of the Constitution. The duty of the Income-tax Officer is to administer the provisions of the Act in the interests of public revenue, and to prevent evasion or escapement of tax legitimately ,due to the State. Though an executive Officer engaged in the administration of the Act. the function of the Income-tax Officer is fundamentally quasi-judicial. His decision to bring to tax either the income of the association collectively or the shares of the members of the association separately is not final: it is subject to appeal to the Appellate Assistant Commissioner and to the Tribunal. The nature of the authority exercised by the Income-tax Officer in a proceeding to assess to tax income, and his duty to prevent evasion or escapement of liability to pay tax legitimately due to the State, con- stitute adequate enuciation of Principles and policy for the guidance of the Income-tax Officer. [72B-H] 66 Suraj Mall Mohta & Co. v. A. V. Visvanatha Sastri and Anr. (1954) 26 I.T.R. 1, distinguished. Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. [1959] S.C.R. 279, Jyoti Pershad v. The Administrator for the Union Territory of Delhi. [1962] 2 S.C.R. 125 and Commissioner of Income-tax U.P. v. Kanpur Coal Syndicate, (1964) 53 I.T.R. 225. referred to, There is no force in the contention that s. 23A of the Income-tax Act, as it was incorporated by Act 21 of 1930 laid down certain principles for the guidance of the Income Tax Officer in exercising his option, but since the-repeal of that section by Act 7 of 1939, the discretion vested in the Income-tax Officer to select either the income of the association or the individual member is unfettered. By the repeal of s. 23A(1) the essential nature of the power of the Incometax Officer was not altered. He remained as before under a duty to administer the Act, for the benefit of public revenue, but his powers were to be exercised judicially and so as to avoid double taxation of the same income. [73A-B; 74F-G] (ii) There was abundant material on the record to prove that the Karta, his minor son and the firm formed an association in the years 1952-53 to 1956-57. Under s. 2(9) of the Income-tax Act, 1922, read with el. (42) of 3 of the General Clauses Act, a firm is a person within the meaning of the Income-tax Act and a firm and an individual or group of individuals may form an association of persons within the meaning of s. 3 of the Income-tax Act. [75F, G] There is nothing in the Act to indicate that a minor cannot become a member of an association of persons for the purposes of the Act. In any event the High Court had rightly held that the mother and guardian of the minor son must, on the facts, be deemed to have given her implied consent to the participation of the minor in the association of persons. [75H] Commissioner of Income-tax, Bombay v. Laxmidas & Anr. (1937) I.T.R., 584 and Commissioner of Income-tax, Bombay North, Kutch Saurashtra v. Indira Balkrishna, (1960) 39 I.T.R. 546, referred to. (iii)The doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year. The assessment and the facts found are conclusive only in the year of assessment: the finding on questions of fact may be good and cogent evidence in subsequent years, when the same question falls to be determined in another year but they are not binding and conclusive. The finding recorded by the High Court that in the year 1951-52 there was no association of persons constituted by the Karta and his minor son did not in 'the present case have any effect on the finding of the Tribunal that in year 1952-53 and the subsequent years such an association existed. Furthermore, the association of persons which traded in 1952-53 and the subsequent years was different from the association in 1951- 52 because in 1952 an association was formed of the Karta, his son and a firm. [75B-C] (iv)If the person described as a principal officer of an. association is duly served with a notice under s. 23(2) in the manner prescribed by s. 23(2), an adjudication of his status as the principal officer, before assessment proceedings may take place, is not obligatory. The order assessing the association containing a finding that the per. son served is the principal officer is sufficient compliance with the 67 requirements of the statute. It is open to the association to challenge the finding of the Income-tax Officer in appeal before the Appellate Assistant Commissioner and in further appeal to the Appellate Tribunal. But the order declaring him as the principal officer of an association of persons will not be deemed to be void merely because the proceeding for assessment was not preceded by a declaration of his status as the principal officer. [80G-81B] Commissioner of Income-tax, Punjab & N.W.F.P. v. Nawal Kishore Kharaiti Lal, (1938) 6 I.T.R. 61, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1060-	1064
of 1965.
Appeals	by special leave from the judgment and order dated
April 3. 1961 of the Madras High Court in Tax Case No.	201
of 1960.
	AND
Civil Appeals Nos. 1103-1107 of 1966.
Appeals	by special leave from the judgment and order dated
November 29, 1963 of the Madras High Court in Writ Petitions
Nos. 1374-1378 of 1961.
M. M.	Nambiyar, K.	Narayanaswami,	B. Manivannan,	B.
Parthasarathy,	J. B. Dadachanji, O.C. Mathur and Ravinder
Narain, for the appellants (in all the appeals).
S. T. Desai, R. Ganapathy Iyer and R. N. Sachthey, for	the
respondent (in all the appeals) and for the Attorney-General
for India (in C. As. Nos. 1103-1107 of 1966).
The Judgment of the Court was delivered by
Shah, J.-Meyyappa (1), Alagammal his wife, and	Chokalingam
and Meyyappa (11) his two minor sons formed in 1940 a Hindu
Undivided Family which traded in the name of “M.S. M.M.”.
The family carried on extensive business in money lending,
rubber	plantations, and in real estates in the Federated
States of Malaya, Burma and India.
The property of the undivided family was divided between the
three male members on February 22, 1940. To Meyyappa	(1)
were allotted at the partition “business of the family” at
Rangoon	and at Karaikudi in the Ramnath District and three
rubber	estates in the Federated States of Malaya and	some
houses.	Even after the partition Meyyappa (1) continued to
remain in management on behalf of himself and his two minor
sons of all the properties ‘and the businesses carried on by
the family when it was joint, and the businesses	were
carried on in the name of “M.S.M.M.”.
The houses and the three rubber estates allotted exclusively
to Meyyappa (1) were entered in the books of accounts opened
in the name of “M.M. Ipoh” from the date of the division.
In
68
December 1941 Alagammal gave birth to a son who was named
Chettiappa. Meyyappa (1) and Chettiappa then constituted a
Hindu coparcenary which owned the property and the business
as allotted to Meyyappa (1) in the partition of 1940.	On
December 30, 1949 a deed of partition was executed between
Meyyappa (I) and Chokalingam (who had by then attained	the
age of majority) in respect of the businesses carried on in
the name of “M.S.M.M.” The	businesses were thereafter
carried on in partnership between Meyyappa (1)	representing
himself	and the minor Chettiappa and Chokalingam Meyyappa
(II) was admitted to the benefits of that partnership.	On
April 13, 1950 partition was effected between Meyyappa	(1)
and the minor Chettiappa by posting entries in the books of
account	of M.M. Ipoh.	It was agreed that the properties
entered	in the books of account of M.M. Ipoh shall be	held
by Meyyappa (1) and Chettiappa in two equal shares, and that
the properties shall continue to remain in the management of
the firm M.S.M.M. to the benefit of which Chettiappa	was
admitted. A deed of partition recording the terms of	that
partition was executed on May 28, 1953 by Meyyappa (1)	and
Alagammal acting as Guardan of the minor Chettiappa.
In 1951 Meyyappa (1) acceded to a demand made	by Chocka-
lingam	on behalf of the M.S.M.M. firm for a half share in
the “M.M. lpoh properties”. There was however no division
of the properties by metes and bounds, and the management of
those properties as a single unit continued to remain	with
the M.S.M.M. firm as before.
Meyyappa (1) was assessed under the Indian Income-tax	Act
1922 to tax year after year till the assessment year 1953-54
in respect of the income from the “M.	M. lpoh	properties”
as a respect individual or as a karta of a Hindu undivided
family.	Later the Income-tax Officer,	Karaikudi, Ramnath
District, issued notices under s. 34(1) of the Income-tax
Act for the assessment years 1951-52 to 1953-54 and under s.
22(2) for the years 1954-55 to 1956-57 for assessment of the
income	of “an association of persons styled M. M. lpoh”.
The Income-tax Officer rejected the contentions raised by
Meyyappa (1) that there was no association of persons of the
nature	described in the notices and brought	to tax	the
income	of the “M.M. lpoh properties” as income received by
an association	of persons formed by Meyyappa (1)	and
Chettiappa in	1951-52, and by Meyyappa (1), the M.S.M.M.
firm and Chettiappa in the years 1952-53 to 1955-57.
In appeals filled by M. M. lpoh, the	Appellate Assistant
Commissioner confirmed the orders passed by the Income-tax
Officer subject to the modification that the income from the
houses	be assessed under s. 9(3) of the Income-tax Act in
the hands of	the members individually, and	not as	the
collective, income of	the association of persons.	The
Appellate Tribunal confirmed the order of the Appellate
Assistant Commissioner,
	69
The Tribunal drew up a statement of case and submitted under
s. 66(1) of the Indian Income-tax Act, the following ques-
tion for determination of the High Court of Madras:
“Whether the assessments on the ‘Association
of persons’ for assessment years 1951-52 to
1956-57 are valid?”
and declined to submit a statement’ of the case on	five
other questions, the first out of which alone is material in
these appeals and need be set out:
“Whether on the facts and in the circumstances
of the case, there are any materials to hold
the assessee as the principal officer of M.M.
lpoh assessed in the status of an association
of persons?”
At the hearing of the reference on the principal question,
the High Court on the application of the assessee proceeded
to deal apparently	without	any objection	from	the
Commissioner with the additional question which had not been
referred by the Tribunal.
The High Court held that the income brought to tax in	the
assessment year 1951-52 did not accrue to an association of
persons, but the income in the years	1952-53	to 1956-57
accrued to an association of persons formed by Meyyappa (1),
M.S.M.M. firm and the minor Chettiappa.	The High Court	was
of the view that Meyyappa (1) acted on behalf of Chettiappa
in forming the association,	that the affairs of	this
association were under the management of Meyyappa (1) during
the account years relevant to the assessment years 1952-53
to 1956-57, that the association of persons was engaged in a
joint enterprise for the purpose of producing income,	that
there being “unity purpose and objectivity” the ultimate
object	of the association to earn income on behalf of	the
members	of the association was “fully	established”.	The
High Court also held that by the notices for assessment of
the income for the years 1952-53 to 1954-55 Meyyappa (1) did
in fact have	notice of the intention	of the Income-tax
Officer	to treat him	as the	principal officer of	the
association, and the	proceedings for assessment	and
reassessment were properly commenced. The	High Court
accordingly by order dated, April 3, 1961 answered the first
question in favour of the assessee in respect of the assess-
ment year 1951-52 and against the	assessee for	the
subsequent five assessment years. The High Court recorded
in answer to the second question that the Income-tax Officer
was justified in holding Meyyappa (1) to be the principal
officer of “M.M. Ipoh”.
On November 21. 1961 five petitions were moved in the	High
Court of Madras under Art. 226 of the Constitution for a
writ of prohibition restraining the Income-tax Officer	from
enforcing the	demands made by him in respect	of the	tax
assessed against
70
“the association of persons M.M. lpoh”. In support of	the
petitions it was urged that s. 3 of the Indian Income-tax
Act invested the Income-tax Officer	with arbitrary	and
unguided power to assess to tax the income of an association
of persons in the hands either of the association or of	the
persons	constituting that association, and on that account
s. 3 offended Art. 14 of the Constitution, and was to	that
extent void the High Court rejected the petitions. Against
the orders passed by the High Court in the petitions	for
writs,	Meyyappa (1) has appealed.	Against	the orders
recorded by the High Court in references under s. 66	the
association of persons “M.M. lpoh” has appealed.
Section 3 of the Income-tax Act invests the taxing authority
with an option to assess to tax the income collectively of
the association of persons, in the hands of the	association
or in	separate shares in the hands of the members of	the
association. Counsel for the assessee contends that the Act
sets out no principles and discloses no guidance to	the
Income-tax Officer in	exercising the option: the	Act
therefore confers arbitrary and uncontrolled authority	upon
the Income-tax Officer to select either the association or
its members for assessment to tax according to	his fancy,
and may on that account be discriminatively administered by
subjecting persons similarly situate to varying rates of
tax.
Counsel in support of that plea relied upon the judgment of
this Court in Suraj Mall Mohta & Co. v. A. V. Visvanatha
Sastri and Anr.(1) but that case is of little assistance to
the assessee.	In Suraj Mall Mohta’s	cave(1)	this Court
declared sub-s. (4) of s. 5 of the	Taxation of Income
(Investigation Commission) Act 30 of 1947 and the procedure
prescribed by that Act, insofar as it affected the persons
proceeded against under that sub-section, invalid as a piece
of discriminatory legislation and on that account offending
against	Art. 14 of the Constitution of India.	The Court
held that sub-s. (4) of s. 5 of Act 30 of 1947	dealt	with
the same class of persons who fall within the ambit of s. 34
of the	Indian Incometax Act 1922 and whose income can be
brought to tax by proceeding under that section: The result
in the	view of the Court was that some assessees who	had
evaded payment of tax by failing to disclose fully and truly
all material facts necessary for assessment of tax could be
dealt with under Act	30 of 1947 at	the choice of	the
Commission, though they could also be proceeded with under
s. 34 of the Indian Income-tax Act. Persons discovered as
evaders of income-tax during an investigation under s.	5(1)
of Act 30 of 1947, and persons discovered by the Incometax
Officer to have evaded payment of tax had in the view of the
Court	common properties	and……… common
characteristics”, and since the procedure prescribed under
Act 30 of 1947 was more
	71
drastic	and deprived the assessee of	valuable rights of
appeal,	second	appeal and revision, s. 5(4) of Act 30 of
1947 under which a	person	could	be selected	for
discriminatory treatment at the choice of the Investigation
Commission was void as infringing tile guarantee of equality
before the law.
But here no question of application of a more drastric	pro-
cedure,	or deprivation of valuable rights of	appeal	and
revision, by the adoption of one of two	alternative
procedures arises. The procedure for assessment is the same
whether	the income is assessed in	the hands of	the
association or the share of each member of the	association
is assessed separately.	In Shri Rain Krishna Dalmia v. Shri
Justice S. R. Tendolkar and Ors,(1) S. R. Das,
C. J., observed at p. 299:
“In determining the question of the validity
or otherwise of……… a statute the court
will not strike down the law Out of had only
because no classification appears on its face
or because a discretion is given to the
Government to make the selection or
classification but will go on to examine and
ascertain if the statute has laid down any
principle or policy for the guidance of the
exercise of discretion or classification.
After such scrutiny, the court will strike
down the statute if it does not lay down any
principle or policy for guiding the exercise
of discretion by the Government in the matter
of selection or classification, on the ground
that the statute provides for the delegation
of arbitrary and uncontrolled power to the
Government so as to enable it to discriminate
between persons or things similarly situate
and that, therefore, the discrimination is
inherent in the statute itself.”
In Jyoti Pershad v. The Administrator for the Union Terri-
tory of Delhi(1) this Court	observed that	where	the
Legislature Jays down the policy and indicates the rule or
line of action which should guide the authority, Art. 14 is
not violated, unless the rules or the policy indicated	lay
down different criteria to be applied to persons or things
similarly situate. It is not however	essential for	the
Legislature to comply with the guarantee of equal protection
that the rules for the guidance should be laid down in
express	terms.	Such	guidance may be obtained from or
afforded by (a) the preamble read in	the light of	the
surrounding circumstances	which	necessitated	the
legislation, taken in conjunction with well-known facts of
which the Court might take judicial notice or of which it is
apprised by evidence before it in the form of	affidavits,
(b) or	even from the policy and purpose of the enactment
which may be gathered from other operative provisions
(1)[1959] S.C.R. 279.
(2) [1062] 2S.C.R. 125.
72
applicable to	analogous or	comparable situations	or
generally from	the object sought to be achieved by	the
enactment.
Section	3 of	the Income-tax Act does	not, it is true,
expressly lay	down any policy for the guidance of	the
Income-tax Officer in	selecting the	association or	the
members	individually as entities in bringing	to tax	the
income	earned	by the association. Guidance may still be
gathered from the other provisions of the Act, its scheme,
policy and purpose, and the surrounding circumstances which
necessitated the legislation.	In considering	whether	the
policy	or principles are disclosed, regard must be had to
the scheme of the Act.	Under the Act of 1922 the Income-tax
Officer	is required to issue a general notice calling	upon
all persons whose total income during	the previous	year
exceeds the minimum not chargeable to tax to submit a return
of income. The Income-tax Officer	may also serve an
individual notice requiring a person whose income in	the
opinion of the Income-tax Officer is liable to tax to submit
a return of income. Primarily the return of income would be
made by an association, where the association	has earned
income, and the Income-tax Officer would also call upon	the
association to	submit a return of its	income, and would
ordinarily proceed to assess tax on the return so made.	But
for diverse reasons,	assessment of	the income of	the
association may not be possible or that such assessment	may
lead to evasion of tax.	It would be open to the Income-tax
Officer then to assess the individual members on the shares
received by them. The duty of the Income-tax Officer is to
administer the provisions of the Act in the interests of
public revenue, and to prevent evasion or escapement of	tax
legitimately due to the State.	Though an executive officer
engaged in the administration of the Act the function of the
Income-tax Officer is fundamentally quasi-judicial.	The
Income-tax Officer’s decision of bringing to tax either	the
income of the association collectively or the shares of	the
members	of the association separately is not final, it is
subject	to appeal to the Appellate Assistant	Commissioner
and to the Tribunal. In Commissioner of Income-tax, U.P. v.
Kanpur Coal Syndicate(1) it was held by this Court that	the
Appellate Tribunal has ample power under s. 33(4) to	set
aside an assessment made on an association of persons and to
direct	the Income-tax Officer to assess the members
individually or to direct amendment	of the assessment
already made on the members. Exercise of this power is from
its very nature contemplated to be governed not	by
considerations	arbitrary but judicial.	The nature of	the
authority exercised by the	Income-tax Officer in a
proceeding to assess to tax income, and his duty to prevent
evasion	or escapement of liability to pay tax	legitimately
due to	tile State, constitute, in our	judgment, adequate
enunciation of principles and policy for the guidance of the
Income-tax Officer.
(1) [1964] 53 I.T.R. 225
73
Counsel	for the appellants contended that s. 23-A of	the
Income-tax Act, as it was incorporated by Act 21 of 1930,
laid down certain principles for the guidance of the Income-
tax Officer in exercising his option, but	since	the
Legislature by	Act 7 of 1939 repealed that provision	the
discretion vested in the Incometax Officer to select either
the income of the association or the individual members is
unfettered. To appreciate the argument it is necessary to
set out in some detail the legislative history. Under	the
Indian	Income-tax Act, 1922, as originally	enacted, an
association of persons or individuals was not an entity	the
income	whereof	was charged to tax.	By 11. of	1924
“association of individuals” was added in s. 3 and an entity
of which the income is charged to tax under the Income-tax
Act, but the Act as it stood amended contained no statutory
safeguard against double taxation of income earned by an
association of individuals. S. 14(1) of the Act (as it then
stood which aimed at avoiding double taxation of the	same
income	was applicable to the income of a Hindu undivided
family, to the income of a company distributed as dividends
to share-holders, and	to the income	of a firm profits
whereof were assessed in its hands. The Legislature amended
s. 14 of the Act by Act 22 of 1930 and remedied the defect
by modifying cl. (c) of sub-s. (2) of s. 14 of the Act	and
provided that “any sum which he (the assessee) received as
his share of	the profits or gains of	an association of
individuals, other than a Hindu undivided family, company or
firm, where such profits or gains have been	assessed to
income-tax”, shall not be subject to tax. The	Legislature
also enacted Act 21 of 1930 which made several modifications
in the	Income-tax Act. It provided for registration of
firms and added s. 23A which provided:
“(1) Where the Income-tax Officer is satisfied
that any firm or other association of
individuals carrying on any business, other
than a Hindu undivided family or a company, is
under the control of one member thereof, and
that such firm or association has been formed
or is being used for the purpose of evading or
reducing the liability to tax of any member
thereof, he may, with the previous approval of
the Assistant Commissioner pass an order that
the sum payable as income-tax by the firm or
association shall not be determined, and
thereupon the share of each member in the
profits and gains of the firm or association
shall be included in his total income for the
purpose of his assessment thereon.”
A similar provision with regard to	companies was	also
incorporated in sub-s. (2) of s. 23A. Broadly speaking, by
the amended provision discretion was given to the Income-tax
Officer	to treat as separate entities for the	purpose of
taxation the individuals formed any association carrying on
business, of which only one
74
member	was competent to bind the association by his acts,
and to give to the Income-tax Officer discretion to treat
the members of a company as separate entities	in certain
conditions-. But s. 23A (1) as enacted by Act 21 of	1930
applied only to first and association of individuals if	the
management was	in the hands of one person: it did not in
terms apply to cases where the management was in the hands
of more persons than one, even if it was formed for	the
purpose	of evading or reducing the liability to tax of	any
member	thereof. By Act 7 of 1939 the expression “asso-
ciation	of persons” was substituted for “association of
individuals”-,	s. 23A(1) was deleted; and sub-s. (5)	was
added to s. 23. Sub-section (5) of s. 23 prescribed	the
mechanism for	bringing to tax the	income	of a	firm
registered or unregistered. If the firm was registered, the
share of each	partner was to	be separately	taken	into
account	together with his other income and brought to	tax.
If it	was an unregistered firm, the income of the	firm
itself	was brought to tax, unless the	Income-tax Officer
wits of the opinion that the correct amount	of the	tax
including super-tax, if any, payable by the partners under
the procedure	applicable to a registered firm would be
greater	than the aggregate amount payable by the firm	and
the partners if the firm is assessed	as an	unregistered
firm.	In respect of unregistered firms a practical scheme
which aimed at preventing evasion of tax was	devised by
enactment of s. 23(5)(b).
After the repeal of s. 23A (1) as introduced by Act 21 of
1930 no similar provision conferring discretion upon	the
Income-tax Officer similar to the discretion which is
prescribed by	the terms of s. 23(5)(b) in respect of	the
income of the unregistered firms was expressly enacted.	But
it cannot be	inferred that it was intended to make	the
discretion of the Income-tax Officer qua the assessment to
tax the income of an association of persons in the hands of
individual members collectively, arbitrary or	unfettered.
By the repeal of s. 23A(1) the essential nature of the power
of an Income-tax Officer was not altered. He	remained as
before	under a duty to administer the Act, for the benefit
of public revenue, but his powers were to be exercised
judicially and so as to avoid double taxation of the	same
income.
This resume of the legislative provisions discloses that the
relevant provisions were made with it view to ensure against
evasion	of tax, while ensuring that the same income shall
not be charged more than once.
The policy and the purpose of the Act may be gathered	from
other operative provisions applicable to analogous	or
comparable situations”: Jyoti Pershad’s case(1) at p.	139:
and there can
(1) [1962] 2 S.C.R. 125.
75
be no doubt that an unregistered firm and an association of
persons	are closely analogous.	If the income is earned by
an association of persons, normally a return would be	made
or asked for	under s. 22 from the association, and	the
income	of the association would be brought to tax. If, it
appears	to the Income-tax Officer that by	taxing	the
association of persons evasion of tax or escapement of	tax
liability may result, he is given a discretion to tax	the
individual members: but the discretion is to be exercised
judicially and not arbitrarily, and its exercise is capable
of rectification by superior authorities exercising judicial
functions.
It cannot therefore be said that there is, by investing
authority in	the Income-tax Officer to	select	the
association of persons or individual members thereof for the
purpose	of assessing to tax the income of the	association,
denial of equality before the law between persons similarly
situate within the meaning of Art. 14 of the Constitution so
as to	render	s. 3 insofar as it confers power upon	the
Income-tax Officer to	select either	the association of
persons	or the members thereof for assessment	to tax in
respect of the income of the association void.	Appeals Nos.
1103-1107 of 1966 must therefore fail.
In the group of appeals which arise out of the order passed
by the High Court in exercise of its advisory	jurisdiction
under the Income-tax Act, counsel for the assessee urged
that there was no association in fact; that Chettiappa being
at all	material times a minor there could in	law be no
association of which the income could be brought to tax, and
that in any event there was no evidence to prove that	any
one on behalf of Chettiappa had assented to the formation of
the association.
The expression “person” is defined in s. 2(9) of the Indian
Income-tax Act, 1922 as including “a Hindu undivided family
and a	local authority”. The definition is inclusive	and
resort	may appropriately be had to the General Clauses	Act
to ascertain the meaning of the expression “person”. Clause
(42) of s. 3 of the General Clauses Act defines a “person”
as inclusive of any	company, association or body	of
individuals whether incorporated or not, and that inclusive
definition in the General Clauses Act would also apply under
the Income-tax Act. A firm is therefore a “Person” within
the meaning of the Income-tax Act, and a firm and an
individual or group of individuals may form an	association
of persons within the meaning of s. 3 of the Indian Income-
tax Act.
There is nothing, in the Act which indicates that a minor
cannot become a member of an association of persons for the
purposes of the Act. In Commissioner of Income-Tax, Bombay
v. Laxmidas and Anr.(1) it was held that the fact that one
of the
(1) [1937] I.T.R. 584.
76
individuals was a minor did not affect the existence of	the
association, if in point of	fact,	the assessees	had
associated together	for the purpose of	gain.	In
Commissioner of Income-tax,	Bombay	North,	Kutch	and
Saurashtra v.Indira Balkrishna(1) it was held “that the word
“associate” means……….. to join in common purpose, or
to join in an action’. Therefore,	and association of
persons	must be one in which two or more persons join in a
common purpose or common action, and as the words occur in a
section which imposes a tax on income, the association	must
be one the object of which is to produce income, profits or
gains.”
In the case before us, there is abundant material, to prove
that Meyyappa	(1), his minor son Chettiappa and M.S.M.M.
firm formed an association in the years 1952-53 to 1956-57.
To review the.relevant facts: the “M.M. Ipoh	properties”
which were allotted to Meyyappa (1) at the partition in 1940
became	on the birth	of Chettiappa, Properties of a
coparcenary, and it is common ground that	Chettiappa
acquired a share in the income which Meyyappa (1) received
from the M.S.M.M. firm: the “M.M. Ipoh properties” were,used
in a trading venture and were managed by the M.S.M.M. firm-
the selling agency was common between	M.S.M.M. firm	and
“M.M. Ipoh”: the stocks and expenditure of the M.M.	Ipoh
firm were not ;separately determined and common books of
account were maintained for the management of the M.M.	Ipoh
properties and the M.S.M.M. firm dealings.
Alagammal-mother of Chettiappa-had executed the deed of
partition dated April 13, 1950 as	the guardian	of
Chettiappa. By the deed she acknowledged having received
the share of Chettiappa in the property. The Tribunal found
that the management was entrusted to the M.S.M.M. firm on
behalf of “M.M. Ipoh”, and that in entrusting the management
Alagammal must have given her consent.	In paragraph II of
the statement of the case, the Tribunal observed:
“The integrity and management of the estates
have continued undisturbed right throughout
the period, only the holding thereof by
various members having changed from time to
time. The volition necessary is only all too
apparent the entrustment of the management to
M.S.M.M. firm for ,a proper management implies
a prior agreement to which the guardian of the
minor must have given her consent too,”
These observations relate to the entire period of six years
1951-52 to 1956-57. In the view of the High Court division
of the	status	of joint Hindu family	on April 13,	1950
between Meyyappa (1) and. Chettiappa was brought about	not
as a result of any mutual agreement between the coparceners,
but by Meyyappa (1 in exercise of his power to do so under
the Hindu law, and “solely from the feature that the share
of minor son Chhettiappa was not separated by metes	and
bounds, a conclusion could
(1) [1960] 39 I.T.R. 546.
77
not be “reached that Meyyappa (1) and Chettiappa continued
as members of an association of persons. The minor had no
volition of his own to express, and the fact that at	the
partition the minor was represented for purposes of form and
nothing more by his father, cannot be taken to mean that the
mother	as his guardian exercised any volition on behalf of
the minor.” In the view of the High	Court “to form an
association of persons no agreement enforceable at law	was
necessary”: but that “is not the same thin- as to say	that
an agreement–express or implied-may be inferred where	none
can possibly exist.	The High	Court rejected	the
contention raised on behalf of the Revenue that the father
must have acted as the guardian of the minor in forming	the
association in 1951-52.	The High Court however held that in
the year 1952-53 and subsequent years	an association of
persons was formed and Meyyappa (1) joined that	association
on behalf of	himself and Chettiappa. Counsel for	the
assessee contends that once the High	Court	reached	the
conclusion that in the year 1951-52 there was no association
of persons, the conclusion that an association	of persons
existed in the subsequent years could	not be	reached in
the absence of positive evidence to show that after	the
close of the year 1951-52 an association of	persons	was
actually formed.
We are not called upon in these appeals to consider whether
the learned Judges of the High Court were right in the	view
which they have taken insofar as it relates to	the
assessment year 1951-52. We	are only called upon to
consider whether the conclusion of the Tribunal that in fact
an association of persons existed in the year	1952-53	Ind
subsequent years was based on any evidence. In our judgment
the facts proved clearly show that	there was such an
association in the years 1952-53 and the subsequent years.
Pursuant to the three partitions no division by metes	and
bounds of the shares of the owners was made, only the shares
in the	income of the owner were entered in the books of
account. There was common management of the properties, and
there was even a common. selling agency.Alagammal had acted
as a guardian of Chettiappa in the deed of partition.	The
Tribunal inferred that Alagammal must have assented to	the
formation of the association on behalf of Chettiappa and in
the various transactions relating to	the entrustment of
management. It is true that this finding related to	the
year 1951-52 as well, and the High Court has disagreed	with
that finding insofar as it related to the year 1951-52.	But
on that account the finding of the Tribunal in	respect of
the subsequent years cannot be discarded. The	Association
which has earned income in the years 1952-53 and thereafter
is an association different from the association in 1951-52.
In 1951 Chokalingam had demanded a share in the	“properties
of M.M. lpoh and he was given a half share. The shares of
Meyyappa (1) and Chettiappa in the properties were
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reduced, and thereafter ownership in the “properties of M.M.
Ipoh” and its activities vested in an association formed by
Meyyappa (1),	the M.S.M.M. firm and	Chettiappa. It is
common ground that “M.M. Ipoh” was a trading venture and its
management was	entrusted in the relevant years to	the
M.S.M.M. firm.
The doctrine of res judicata does not apply so as to make a
decision on a question of fact or law in a proceeding	for
assessment in	one year binding in	another	year.	The
assessment and the facts found are conclusive only in	the
year of assessment: the findings on questions of fact may be
good and cogent evidence in subsequent years, when the	same
question falls to be determined in another year, but	they
are not binding and conclusive.	The finding recorded by the
High Court that in the year 1951-52 there was no association
of persons constituted by Meyyappa (1) and Chettiappa	for
earning	income	from M.M. Ipoh properties will not in	the
present case have any effect on the finding of the Tribunal
that in year	1952-53 and the	subsequent years such an
association existed. It must again be remembered that	the
association of	persons which traded in 1952-53 and	the
subsequent years was	an association	different from	the
association in 1951-52. After the reduction in the shares
of Meyyappa (1) and Chettiappa in the “M.M. Ipoh properties”
a fresh arrangement for entrustment of the management of the
properties to the M.S.M.M. firm was necessary and according
to the	findings of the Tribunal, Alagammal	assented on
behalf of Chettiappa to that arrangement.
Counsel	for assessee contended that for the finding	that
Alagammal assented on	behalf of Chettiappa	to form an
association was not supported by any evidence on the record.
But from readjustment	of the shares	in the	“M.M.	Ipoh
properties”, admission	of Chettiappa to the	benefits of
M.S.M.M. firm and the management of “M.M. Ipoh	properties”
to continuing	F to remain with the M.S.M.M. firm, with a
common	selling	agency, and the execution of the deed of
partition by Alagammal, an inference could reasonably be
made that a person purporting to act as	guardian of
Chettiappa concurred in forming the association and that the
person so concurring was Alagammal. The finding recorded by
the Tribunal is one of fact, and was not liable a to be
questioned before the High Court. It is also pertinent to
note that the finding that Alagammal acted on behalf of
Chettiappa in forming the association for the years 1952-53
was never challenged	and was not sought to be made	the
subject	of a question in an application to the Tribunal
under s. 66(1) and no question in that behalf was referred
to the High Court. It is true that the High Court was of
the view that in the years 1952-53 to 1956-57 Meyyappa	(1)
acted on behalf of Chettiappa in forming the	association.
But the High Court in a reference under s. 66 of the Income-
tax Act was incompetent to disturb what was
79
essentially a finding of fact recorded by the Tribunal	and
arrive at another finding.
On the other question which has been answered by the	High
Court the Tribunal declined to submit a statement of	the
case, because in their view it did not arise out of their
order.	They pointed out that a ground in support thereof
was taken in the memorandum of appeal, but as it was	not
pressed	before the Appellate Assistant	Commissioner.	they
did not deal with it.	The High Court	observed that	the
Tribunal was bound to deal with the question irrespective of
whether	it was agitated before the	Appellate Assistant
Commissioner.	Even assuming that the second question	was
properly raised in the form and in the manner in which it
was raised by the High Court, the answer to the question
must, on the facts found, be against the assessee. Counsel
for the assessee contended that there were no materials on
which the Tribunal could hold that Meyyappa (1) was	the
principal officer of “M.M. Ipoh”, and since the Income-tax
Officer	had made no enquiry	before	issuing	the notice
treating Meyyappa (1) was the principal officer of “M.M.
Ipoh”, Meyyappa (1) could not be so treated for the purpose
of the	proceedings for assessment. Under s.	22(2),	the
Income-tax Officer may, if in his opinion the income of a
person	is liable to income-tax, serve a notice upon	him
requiring him to furnish a return in the prescribed form.
The notice under s. 34 for re-assessment must also contain
all or any of the requirements which may be included in a
notice	under sub-S. (2) of S. 22. Such a notice may be
served	under s. 63(2) of the Income-tax Act upon	the
principal officer of an association of persons. Under	the
definition in s. 2(12) a “Principal officer”omitting parts
not material-“used with reference to….. any	association
means-(a) . .	. . (b) any	person	connected with	the
authority, company, body, or association upon whom	the
Incometax Officer has served a notice of his intention of
treating him as the	principal officer thereof;”.	The
Income-tax Officer Karaikudi assessed the income of	“the
association M.M. Ipoh by its	principal officer M.S.M.M.
Meyyappa Chettiyar”. No objection was ever raised before
the Income-tax Officer about the regularity of	the
proceedings and the Income-tax Officer found that Meyyappa
(1) was the principal officer of the	association.	Even
before	the Appellate	Assistant Commissioner	it was	not
argued that Meyyappa (1) was not the principal officer.	For
the first time that ground was taken before the Tribunal.
The notices served on Meyyappa (1) are not printed in	the
record	prepared for use in this Court. In the orders of
assessment for the year 1952-53 and the subsequent years it
is recorded that action was taken to bring to tax the income
of “M.M. Ipoh”, and in response to the notices the principal
officer	Meyyappa (1)	had filed returns. The assessee
submitted an application under s. 66(2) during the course of
the hearing before the High Court of the question referred
by the
80
Tribunal. The	High Court granted that application	and
without	calling for a formal statement of the case on	the
‘question sought to be raised, heard the parties. It may be
reasonably assumed that the assessee was prepared to argue
the case on the footing that the statements in the orders of
the Income-tax Officer were correct. In the circumstances
it must be held that the Income-tax Officer did, serve a
notice of his intention to treat a person connected with the
association as the principal officer thereof.	The Income-
tax Officer assessed the income of the association as repre-
ented by Meyyappa (1) its principal officer. There is, in
our judgment,	nothing	in the Act which supports	the
contention of	counsel for the assessee that before
proceedings in assessment can commence	against	an
association of persons a notice must in the first instance
be issued and an order passed after giving opportunity to
the person proposed to be treated as the principal officer
opportunity to show cause why he should not be so treated.
It is open to the Income-tax Officer to serve a notice on a
person	who it is intended to be treated as the principal
officer. The person so served may object that he is not the
principal officer or that the association is not properly
formed.	The Income-tax Officer will then consider whether
the person served is the principal officer and	whether he
has some connection or concern with the income sought to be
assessed. There is in the Income-tax Act an analogous
provision in s. 43 of the Act which authorises the Income-
tax Officer to treat a person as a statutory agent of	the
non-resident for the purpose of assessing him to tax,	the
income	received by the non-resident.	It was held by	the
Judicial Committee in Commissioner of Income-tax, Punjab &
N.W.F.P. v. Nawal Kishore Kharaiti Lai(1) that it is	not
necessary for the validity of a notice calling for a return
of the income under S. 23(2) served on a person as agent of
a non-resident	under	S. 43, that it should have	been
preceded not only by the notice of intimation prescribed by
s. 43, but also by an order declaring the person to be agent
of the non-resident or treating him as such. The Income-tax
Officer may postpone any final determination of the dispute
until the time comes to make an assessment under S. 23 of
the Act. In our judgment, the same principle applies to a
case in which	in the assessment of	the income of an
association of	persons or person is to be treated as a
principal officer of	that association. If	the person
described as a principal officer of an association is	duly
served with a notice under S. 23(2) in the manner prescribed
by s. 63(2), an adjudication of his status as the principal
officer before assessment proceedings may take place is	not
obligatory. The order assessing the association containing
a finding that the person served is the principal officer is
sufficient compliance with the requirements of the statute.
It is open to the association to challenge the	finding of
the Income-tax Officer
81
in appeal before the Appellate Assistant Commissioner and in
further	appeal	to the Appellate Tribunal. But the order
declaring him as the principal officer of an association of
persons	will not be deemed to be void merely	because	the
proceeding for assessment was not preceded by a	declaration
of the	status	of the person	treated as the principal
officer.
The appeals Nos. 1060-1964 of 1965 must also fail and	are
dismissed with	costs.	There will be one hearing fee in
appeals	Nos. 1103-1107 of 1966 and one hearing fee in
appeals Nos. 1060-1064 of 1965.
R.K.P.S.
Appeals dismissed.
82