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Vijaykunverba vs Commissioner Of Income-Tax on 16 June, 1993

Gujarat High Court
Vijaykunverba vs Commissioner Of Income-Tax on 16 June, 1993
Equivalent citations: 1994 208 ITR 312 Guj
Author: G Nanavati
Bench: G Nanavati, Y Bhatt


JUDGMENT

G.T. Nanavati, J.

1. The following three questions have been referred to this court by the Income-tax Appellate Tribunal, Ahmedabad, under section 256(1) of the Income-tax Act, 1961 :

“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the status of the executor will have no direct relationship or bearing with the income to be assessed or the tax liability ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that in the instant case, the Appellate Assistant Commissioner had jurisdiction to deal with the question of status ?

(3) Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the Appellate Assistant Commissioner had jurisdiction in setting aside the assessment of the assessee for the assessment years 1970-71, 1971-72 and 1972-73 ?”

2. The abovestated three questions have arisen in respect of the assessment for the assessment years 1970-71, 1971-72 and 1972-73. There were three assessment orders against which three separate appeals were filed before the Appellate Assistant Commissioner and even before the Tribunal also, there were three separate appeals. The assessee made three separate reference applications. Therefore, the Tribunal ought to have made three references instead of making of a common reference for all the three years. As the Tribunal has failed to do so, we direct the office to register three references separately treating Reference No. 270 of 1978 as reference in respect of the assessment year 1970-71 and treading the other two references, viz., Reference Nos. 270A of 1978 and 270B of 1978, as references in respect of the assessment years 1971-72 and 1972-73.

3. The assessee is the sole surviving executrix of the Indian estate of the late Maharaja H. H. Mahendrasinhji of Morvi. Mahendrasinhji executed two wills, one dated October 31, 1953, in respect of his estate mainly in India and the other dated June 4, 1954, in respect of his estate mainly in Britain. He appointed executors under the said two wills. The assessee is one of the three executors appointed under the will dated October 31, 1953. The other two executors having died, the assessee has remained thereafter the sole surviving executrix. It appears that since the assessment year 1970-71, she has been filing the returns in the status of an individual. Along with the returns for the assessment years 1970-71, 1971-72 and 1972-73, the assessee had filed a statement showing foreign income. She had no objection if foreign income was also assessed provided double taxation relief was granted. The Income-tax Officer decided the status of the assessee as “resident” and “ordinarily resident” and also as an individual. He, therefore, included not only the income received from the Indian estate but also from the British estate and framed the assessment accordingly. The assessee then preferred an appeal to the Appellate Assistant Commissioner. He geld that the British income was not taxable. As regards the correct status of the assessee, the Appellate Assistant Commissioner was of the view that it was not necessary for the Income-tax Officer to record a finding on that point as he was of the view that if the Indian estate and the British estate formed part of one estate, naturally there would be more than one executor and in that case, an assessee could be taxed in the status of an association of persons. The Appellate Assistant Commissioner, therefore, set aside the order passed by the Income-tax Officer and sent the matter back to the Income-tax Officer for framing a fresh assessment. The assessee thereafter preferred an appeal to the Tribunal contending that the Appellate Assistant Commissioner acted without jurisdiction or in excess of jurisdiction in setting aside the assessment and directing the Income-tax Officer to consider the question regarding status of the assessee. The contention raised by the assessee was that the Appellate Assistant Commissioner ought to have decided the appeal on the basis that the status of the assessee was individual. The Tribunal rejected the contentions raised on behalf of the assessee by holding that it was within the powers of the Appellate Assistant Commissioner to pass such an order. The Tribunal, however, observed that the Appellate Assistant Commissioner has no power to give specific instructions or directions to the Income-tax Officer as regards the merits of the controversy and if such directions are given, then they are to be regarded as inoperative. Having made that observation, the Tribunal further clarified the position by stating that as the assessment has been set aside, the entire assessment foes back to the Income-tax Officer without any finding of the Appellate Assistant Commissioner being binding on the Income-tax Officer and that the Income-tax Officer will have to apply his mind afresh on all the aspects. As the assessee was not satisfied with the order passed by the Tribunal, she moved the Tribunal under section 256(1) of the Act to refer four questions to this court. The Tribunal reframed these questions and ultimately referred the abovestated three questions to this court.

4. So far as question No. 1 is concerned, it is premature to answer it at this stage as what shall be the rate of tax and the tax liability will have to be determined by the Income-tax Officer only after ascertaining the correct facts and the nature and extent of the assessee’s liability.

5. So far as question No. 2 and 3 are concerned, in substance, the point which arises for determination is whether it was open to the Appellate Assistant Commissioner while deciding the appeal to set aside the assessment order on the point which was decided by the Income-tax Officer in favour of the assessee and in respect of which no appeal was filed.

6. As regards the powers of the Appellate Assistant Commissioner while deciding an appeal, it has been held that his powers are wider than the powers of an ordinary court of appeal and that they are not confined to the subject-matter of the appeal but extend to the subject-matter of the assessment. In Narrondas Manordass v. CIT [1957] 31 ITR 909, the Bombay High Court held that the power of the Appellate Assistant Commissioner was not confined to the matter in respect of which the assessee had appealed, but he had power to revise the whole assessment of the assessee once an appeal had been preferred. That view taken by the Bombay High Court has been approved by the Supreme Court in CIT v. McMillan and Co. [1958] 33 ITR 182. This court in CIT v. Steel Cast Corporation [1977] 107 ITR 683 has also held as under (at page 694) :

“The powers of the Appellate Assistant Commissioner are not confined to the subject-matter of the appeal but extend to the subject-matter of the assessment. The entire assessment is thrown open before the Appellate Assistant Commissioner, and, so long as he does not travel outside the matters considered and determined by the Income-tax Officer, he can correct any decision of the Income-tax Officer in the course of the assessment even if the assessee is satisfied with it and has not challenged it in the appeal.”

7. In view of the settled position and also in view of the fact that whether income deserves to be assessed on the basis of an association of persons or individual is a part of the process of assessment, it was open to the Appellate Assistant Commissioner to consider the question of status of the assessee for the first time while hearing the appeal filed by the assessee. Since the whole assessment was open before the Appellate Assistant Commissioner, it was also open to him to disagree with the Income-tax Officer regarding the assessment of income as an individual and direct him to make fresh inquiry and frame the assessment again after considering all the relevant facts. It, therefore, cannot be said that the Tribunal was wrong in holding that the Appellate Assistant Commissioner had jurisdiction to deal with the question of status. We, therefore, answer questions Nos. 2 and 3 in the affirmative, that is, against the assessee and in favour of the Revenue. Reference is disposed of accordingly with no order as to costs.

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