{"id":172338,"date":"1973-03-08T00:00:00","date_gmt":"1973-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-i-t-andhra-pradesh-vs-ms-vadde-pallaiah-co-on-8-march-1973"},"modified":"2015-05-22T16:05:37","modified_gmt":"2015-05-22T10:35:37","slug":"c-i-t-andhra-pradesh-vs-ms-vadde-pallaiah-co-on-8-march-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-i-t-andhra-pradesh-vs-ms-vadde-pallaiah-co-on-8-march-1973","title":{"rendered":"C.I.T., Andhra Pradesh vs M\/S. Vadde Pallaiah & Co on 8 March, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.I.T., Andhra Pradesh vs M\/S. Vadde Pallaiah & Co on 8 March, 1973<\/div>\n
Equivalent citations: 1973 AIR 2434, \t\t 1973 SCR (3) 655<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nC.I.T., ANDHRA PRADESH\n\n\tVs.\n\nRESPONDENT:\nM\/S.  VADDE PALLAIAH & CO.\n\nDATE OF JUDGMENT08\/03\/1973\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\nKHANNA, HANS RAJ\n\nCITATION:\n 1973 AIR 2434\t\t  1973 SCR  (3) 655\n 1973 SCC  (4) 121\n CITATOR INFO :\n RF\t    1979 SC1933\t (15)\n R\t    1984 SC 993\t (22)\n\n\nACT:\nIncome-tax  Act (11 of 1922) s. 34(3), Second  Proviso-Scope\nof.\n\n\n\nHEADNOTE:\nUpto  the  assessment  year 1953-54  a\tbusiness  was  being\ncarried on by P as an individual. in March 1953, he  entered\ninto  a partnership consisting of himself and  others.\t For\nthe  assessment years 1954-55, 1955-56 and 1956-57 the\tfirm\nfiled  returns of income and applied for registration  under\ns. 26A of the Income-tax Act. 1922.  The income-tax  officer\nrejected' the application holding that there was no  genuine\nfirm.  He accordingly assessed P as an individual in respect\nof  the\t income earned in that business.   As  against\tthat\norder  the  firm  as well as P\tappealed  to  the  Appellate\nAssistant  Commissioner who allowed both the  appeals.\t The\nAppellate Assistant Commissioner held that the business\t was\nthat of the firm and' not of P. When the income-tax  Officer\nproceeded to assess the firm for the assessment years  1954-\n55,  1955-56  and 1956-57, the firm resisted it\t taking\t the\nplea that the proceedings were barred by limitation under  s\n34(3)  of the Act.  On the question whether  the  assessment\nfor  each of the assessment years was valid the High  Court,\non reference, held that the assessments were barred by\ttime\nand were not saved by the second' proviso to s. 34(3) of the\nAct.\nAllowing the appeals to this Court.\nHELD  : Under the proviso the limitation of time  would\t not\napply to an assessment or re-assessment made on the assessee\nor  any\t person in consequence of or to give effect  to\t any\nfinding or direction contained in an order under s. 31,\t 33,\n33A  and 33B, 66 or 66A.  A finding which can be  considered\nas  relevant  under  the  proviso  must\t be  one  which\t was\nnecessary for deciding the appeal before the authority;\t and\nthe  expression\t ,any  person' refers to one  who  would  be\nliable\tto be assessed for the whole or part of\t the  income\nthat  went into the assessment of the year under  appeal  or\nrevision.   The person should be intimately  connected\twith\nthe proceedings in which the finding was given. [658 CD; 660\nA-B, E-F]\nIn  the present case, the order of the\tAppellate  Assistant\nCommissioner was made under s. 31.  Though he had not  given\nany direction, the order made by the Income-tax Officer\t was\nin  consequence\t of  the  finding  given  by  the  Appellate\nAssistant Commissioner.\t The finding given by the  Appellate\nAssistant  Commissioner\t that the business was that  of\t the\nfirm was absolutely necessary for deciding both the  appeals\nbefore him.  P, who was the dominant partner of the firm was\nnot  only  interested  in his own assessment  but  was\talso\ninterested, in the assessment of the firm.  The partners and\nthe firm were intimately connected with him and hence,\nthey  are 'persons' coming within the scope of the  proviso.\n[658 E-F; 660 C, F-G]\nIncome-tax  Officer,  A-Ward, Sitapur v.  Murlidhar  Bhagwan\nDas,  52  I.T.R.  335;\t344,  N.M.  Sivalingam\tChettiar  v.\nCommissioner  of  Incometax,  Madras,<\/a>  66  I.T.R.  586\t and\nDaffadar Bhagat Singh and Sons v. Incometax Officer,  A-Ward\nFerozepore,<\/a> 71 I.T.R. 417, followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.1682 to\t1684
\nof 1970.\n<\/p>\n
656<\/span><\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nOctober 3, 1969 of the Andhra Pradesh High Court in R.C. No.
\n4 of 1966.\n<\/p>\n
S. T. Desai, B. D. Sharma, S. P. Nayar, and R. N.  Sachthey,
\n,for the, appellant.\n<\/p>\n
N.  D.\tKarkhanis,  and\t K.  Rajendra  Chowdhary,  for\t the
\nrespondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nHEGDE,\tJ.These\t are appeals by Special Leave.\t They  arise
\nfrom a common judgment of the Andhra Pradesh High Court in a
\nreference under section 66(i) of the Indian Income Tax\tAct,
\n1922,  to  be  hereinafter referred to as  the\t“Act”.\t The
\nreference  in  question\t relates to the\t assessment  of\t the
\nassessee for the assessment years 1954-55, 1955-56 and 1956-\n<\/p>\n
57.   The  question  of\t law referred  by  the\tTribunal  is
\n“Whether on the facts and the circumstances of the case, the
\nassessment  made  on the firms, for each of  the  assessment
\nyears 1954-55, 1955-56 and 1956-57, are valid in law ?”
\nNow we shall set out the material facts as could be gathered
\n‘from the case stated by the Tribunal.\tUp to and  including
\nthe  assessment\t year  1953-54 business with  which  we\t are
\nconcerned  in this case, was carried on by  Vadde  Pallaiah.
\nHe  was assessed as an ‘individual’.  On March 20-3-1953  he
\nentered\t into a partnership consisting of himself and  three
\nothers.\t That partnership was known as “M\/s.  Vadde  Pulliah
\n&  Co.” In that partnership Pulliah had 8 as. share and\t out
\nof  the\t remaining three partners two had 3 as.\t share\teach and o
\nne had 2 as. share.  For the assessment years 1954-55,
\n1955-56 and 1956-57, this firm filed returns of income as  a
\nfirm.\tIt also applied for registration under section\t26A.
\nThe  Income-tax\t Officer rejected that\tapplication  holding
\nthat  there was no genuine firm.  He came to the  conclusion
\nthat  the  business  was  exclusive  that  of  Pulliah.\t  He
\naccordingly  assessed Pulliah as an ‘individual’ in  respect
\nof  the\t income earned in that business.   As  against\tthat
\norder both the firm as well as Pulliah went up in appeal  to
\nthe Appellate Assistant Commissioner.  Before the  Appellate
\nAssistant  Commissioner, the question for consideration\t was
\nwhether\t the  firm in question was a genuine firm.   If\t the
\nfirm  was  a  genuine firm,  it\t necessarily  followed\tthat
\nPulliah\t was wrongly assessed.\tIf, on the other  hand,\t the
\n‘firm was not a genuine firm, Pulliah was rightly  assessed.
\nTherefore, the sole question that arose for decision in\t the
\nappeals\t filed by the firm as well as Pulliah was as to\t the
\ngenuineness   of  the  firm  in\t question.   The   Appellate
\nAssistant  Commissioner after examining the material  before
\nhim  came to the conclusion that the firm in question was  a
\ngenuine firm.  Consequently, he allowed the
\n657<\/span>
\nappeal\tof  the\t firm as well as that of  Pulliah.   In\t the
\nfirm’s\tappeals,  he  directed\tthe  Income-tax\t Officer  to
\nregister,  that firm and in Pulliah’s appeal he\t set  aside
\nthe assessment made on him. In the operative portion of\t his
\norder he stated thus
\n\t      “The  Income-tax Officer is directed to  adopt
\n\t      the, correct, share of income of the appellant
\n\t      from this firm.”\n<\/p>\n
But  in the body of his order he specifically held that\t the
\nbusiness. in question was carried on by the firm and not  by
\nPulliah.\n<\/p>\n
After this order was made, the Income-tax Officer  proceeded
\nto  assess the firm in respect of the income earned by\tthat
\nfirm during the assessment years 1954-55, 1955-56 and  1956-
\n57 When the Income-tax Officer initiated proceedings against
\nthe  firm for the purpose of assessment, the  firm  resisted
\nthe same taking the plea that the proceedings in question is
\nbarred\tby  limitation under section 34(3) of the  Act.\t  He
\nrejected that contention.  Aggrieved by that order the\tfirm
\nwent up in appeal to the Appellate, Assistant  Commissioner.
\nThe  Appellate Assistant Commissioner upheld the  contention
\nof the, assessee and set ‘aside the order of’ the Income-tax
\nOfficer.  As against that order the Income tax Officer went
\nup  in\tappeal to the Income-Tax  Appellate  Tribunal.\t The
\nTribunal  partly  accepted  the\t appeal\t of  the  Income-tax
\nOfficer.. It came to the conclusion that the assessment\t in
\nrespect\t of  assessment years 1955-56 and  1956-57  are\t not
\nbarred in view of the Second Proviso to section 34(3) of the
\nAct.   But it opined that the assessment in respect  of\t the
\nassessment year 1954-55 was barred by limitation.
\nAggrieved  by the decision of the Tribunal both the  Commis-
\nsioner\tof  Income-tax\tas well as the\tassessee  moved\t the
\nTribunal  under\t section 66(i) of the Act to  refer  certain
\nquestions  of law to the High Court of Andhra Pradesh.\t The
\nTribunal submitted’ the question set out earlier to the High
\nCourt.’ The High court has answered that question in  favour
\nof  the\t assessee.   It\t came to  the  conclusion  that\t the
\nimpugned  assessments were barred by time and they  are\t not
\nsaved by the Second Proviso to sub-section(3) of section  34
\nof  the Act.  Tit is as against that decision these  appeals
\nhave been brought by the Commissioner of Income-tax.
\nIn order to decide the controversy before us it is necessary
\nto  refer  to  the material portions of\t section  34.\tThat
\nsection\t deals with income escaping assessment.\t We are\t now
\nconcerned with sub-section (3) of section 34 and the  Second
\nProviso there to Sub-section (3) of section 34 reads :\n<\/p>\n
\t      “No order of assessment or reassessment, other
\n\t      than an order of assessment tinder section  23
\n\t      to  which\t ‘clause(c) of\tsub-section  (1)  of
\n\t      section 28 applies or an order-\n<\/p><\/blockquote>\n
658<\/span><\/p>\n
of assessment or reassessment in cases falling within clause\n<\/p>\n
(a)  of sub-section (1) or sub-section (1A) of this  section
\nshall be made after the expiry of four years from the end of
\nthe  year in which the’ income, profits or gains were  first
\nassessable.”\n<\/p>\n
The First Proviso is not relevant for our present  purposes.
\nHence  we shall proceed to quote the Second Proviso to\tsub-
\nsection (3) of section 34.  That Proviso gays
\n\t      “Provided\t further that nothing  contained  in
\n\t      this  section limiting the time within,  which
\n\t      any   action  may\t be  taken  or\tany   order,
\n\t      assessment or re-assessment may be made, shall
\n\t      apply to a re-assessment made under section 27
\n\t      or  to an assessment or re-assessment made  on
\n\t      the  assessee or any person in consequence  of
\n\t      or to give effect to any finding or  direction
\n\t      contained\t in  an\t order\tunder  section\t 31,
\n\t      section 33, section 33A, section 33B,  section
\n\t      66 or section 66A.”\n<\/p>\n
The  question  before us is whether the assessee’s  case  is
\ncovered\t by the Second Proviso to section 34(3) ?  Before  a
\ncase can be said to be covered by the said Proviso  certain
\nrequirements  will  have  to be fulfilled.   The  first\t and
\nforemost  requirement  is that the order made  must  be\t one
\neither\tunder  section 31 or section 33 ,or section  33A  or
\nsection\t 33B or section 66 or section 66A.  In\tthe  present
\ncase,  admittedly,  the\t order in question  was\t made  under
\nsection 31.  The present case does not fall within the scope
\nof section 27 about which there is no dispute.
\nThe next requirement is that the order made by the IncomeTax
\nOfficer\t must be to give effect to any finding or  direction
\ngiven  by  the\tAppellate  Authority.\tIn  this  case,\t the
\nAppellate   Assistant  Commissioner  had  not\tgiven\t‘any
\ndirection  to assess the assessee.  Therefore, all that\t we
\nhave  to  see is whether the order made by  the\t Income\t tax
\nOfficer\t was  in  consequence  of a  finding  given  by\t the
\nAppellate  Assistant  Commissioner.  The  further  ,question
\nthat  we have got to decide is whether the assessee  can  be
\nconsidered as one of the persons coming within the scope  of
\nthe  proviso  in  question.   There  has  been\tconsiderable
\ncontroversy  as to the meaning of the word ‘finding’ in\t the
\nSecond\tProviso\t to section 34(3).  This  question  came  up
\nbefore\tthis Court for consideration in Income-Tax  Officer,
\nA-Ward,\t Sitapur v. Murlidhar Phagwan Das.(1) This  is\twhat
\nthis Court observed in that case
\n\t      “The  expression “finding or  direction”,\t the
\n\t      argument\tproceeds, is wide enough to take  in
\n\t      at  any  rate a finding that is  necessary  to
\n\t      dispose  of  the\tappeal\tor  direction  which
\n\t      Appellate Assistant Commissioners have in
\n(1) 52 I.T.R. 335 ; 344.\n<\/p>\n
659<\/span><\/p>\n
\t      practice\t been\tissuing\t  in   respect\t  of
\n\t      ‘assessments  of\tthe years other\t than  those
\n\t      before   them  in\t appeal.   What\t  does\t the
\n\t      expression “finding” in proviso to sub-section
\n\t      (3) of section 34 of the Act mean ?  “Finding”
\n\t      has  not been defined in the  Income-tax\tAct.
\n\t      Order  XX,  rule\t5,  of\tthe  Code  of  Civil
\n\t      Procedure reads :\n<\/p>\n
\t      “In  suits in which issues have  been  framed,
\n\t      the court shall state its finding or decision,
\n\t      with the reasons therefor, upon each  separate
\n\t      issue, unless the finding upon any one or more
\n\t      of  the issues is sufficient for the  decision
\n\t      of the suit.”\n<\/p>\n
\t      Under this Order, a “finding” is, therefore, a
\n\t      decision\ton an issue framed in a\t suit.\t The
\n\t      second  part  of the rule shows  that  such  a
\n\t      finding shall be one which by its own force or
\n\t      in  combination with findings on other  issues
\n\t      should  lead  to\tthe decision  of  the  suit1
\n\t      itself.  That is to say, the finding shall  be
\n\t      one which is necessary for the disposal of the
\n\t      suit.  The scope of the meaning of  expression
\n\t      “finding” is considered by a Division Bench of
\n\t      the Allahabad High Court in Pt.  Hazari Lal V.
\n\t      Income-Tax  Officer, Kanpur,(‘,).\t  There\t the
\n\t      learned judges pointed out
\n\t      The  word ‘finding’, interpreted in the  sense
\n\t      indicated\t  by  us  above,  will\tonly   cover
\n\t      material questions which arise in a particular
\n\t      case for decision by the authority hearing the
\n\t      case or, the appeal which, being necessary for
\n\t      passing  the final order or giving  the  final
\n\t      decision\tin the appeal, has been the  subject
\n\t      of controversy between the interested  parties
\n\t      or  on which the parties concerned  have\tbeen
\n\t      given a hearing.”\n<\/p>\n
We agree with this contention of finding.” The same view was
\ntaken  by  this\t Court\tin  N.KT.  Sivalingam  Chettiar\t  v.
\nCommissioner of Income-tax, Madras<\/a> (2) .
\n.LM15
\nTherein\t this Court ruled that a finding or direction by  an
\nappellate  authority in an order relating to the  assessment
\nof  one\t year does not warrant the avoidance of the  bar  of
\nlimitation  under  section 34 of the Indian  Incometax\tAct,
\n1922,  against initiation of proceedings for assessment\t for
\nanother\t year.\t A  finding within  the\t second\t proviso  to
\nsection\t 34(3),\t must  be a finding  for  giving  relief  in
\nrespect\t of  the  assessment for the year  in  question.   A
\nfinding\t may only be that which was necessary for  the\tdis-
\nposal  of an appeal in respect of an assessment of a  parti-
\ncular year.\n<\/p>\n
(1) 39 I.T.R. 265.\t  (2) 66 I.T.R. 586.\n<\/p>\n
660<\/span><\/p>\n
The  law on question was elaborately examined by this  Court
\nagain  in  Daffadar  Bhagat Singh  and\tSow  v.\t Income,-tax
\nOfficer,   A   Ward  Ferozepure<\/a>(1).   Therein\tthis   Court
\nreiterated  that  a  finding  which  can  be  considered  as
\nrelevant  under the second proviso to section 34(3) must  be
\none  which was necessary for deciding the appeal before\t the
\nauthority.   Having set out the law let us  examine  whether
\nthe finding given in this case is one that was necessary for
\nthe  decision  of the case before  the\tAppellate  Assistant
\nCornmissioner.\t As mentioned earlier the question that\t the
\nAppellate  Assistant Commissioner had to decide in  the\t two appea
\nls  before him, which he heard together,  was  whether
\nthe  business  in question was the business of the  firm  or
\nthat  of Pulliah.  He had only two alternatives before\thim.
\nIn order to decide the appeal of the firm as well as that of
\nPulliah,  he had to decide whether the business was that  of
\nthe firm or that of Pulliah.  He came to the conclusion that
\nthe business was that of the firm and not of Pulliah.  There
\nis no room for doubt that the finding given by the Appellate
\nAssistant Commissioner was absolutely necessary for deciding
\nboth the appeals before him.\n<\/p>\n
This  takes us to the other branch of the second proviso  to
\nsection 34(3), namely, whether the firm can be considered as
\ncoming within the expression ‘any person’ in the proviso  in
\nquestion.  In Murlidhar Bhagwan Das (Supra), this Court came
\nto  the conclusion that the expression ‘any person’  in\t the
\nsecond proviso to section 34(3) referred to one who would be
\nliable to be assessed for the whole or a part of the  income
\nthat  went into the assessment of the year under  appeal  or
\nrevision.    Further,  that  person  should  be\t  intimately
\nconnected  with\t the proceedings in which  the\tfinding\t was
\ngiven.\tThe same view was taken in other cases refierred  to
\nearlier.   In  the  instant case Pulliah  was  the  dominant
\npartner of the firm as found by the Tribunal.  He had 8\t as.
\nshare in ;the firm.  He, was the original owner of the firm.
\nHe  was\t not only interested in his own assessment,  he\t was
\nalso interested in the assessment of the firm.\tThe  partner
\nof  Pulliah were ,intimately connected with him.   Hence  we
\nwere  clearly of the opinion that they are “persons”  coming
\nwithin the scope of the second proviso to section 34(3).  It
\nmay  be noted that the Appellate Assistant Commissioner\t had
\nto  deal with–the cases of Pulliah as well as that  of\t the
\nfirm.\n<\/p>\n
In  our opinion the High Court erred in coming to  the\tcon-
\nclusio.n  that the finding given by the Appellate  Assistant
\nCommissioner, in the appeals filed by Pulliah as well as  by
\nthe  firm, that the business was carried on by the firm\t was
\nnot  a\tnecessary .finding for deciding the  appeals  before
\nhim.  That finding was
\n(1) 71 I.T.R, 417.\n<\/p>\n
661<\/span><\/p>\n
clearly\t necessary.  But for that finding he could not\thave
\ndecided\t the appeals before him in the way he decided.\t The
\nHigh  Court was also wrong in its conclusion that  the\tfirm
\nwas a stranger to the assessment made on Pulliah.  The\tfirm
\nwas  intimately\t connected with Pulliah and  the  assessment
\nmade on him.\n<\/p>\n
For  the reasons mentioned above we set aside the  order  of
\nthe  High  Court.  We vacate the answer given  by  the\tHigh
\nCourt and answer the question referred to in the affirmative
\nand  in favour of the Revenue.\tThe appellant will  got\t his
\ncosts from the Respondent.  One hearing fee.\n<\/p>\n
V.P.S.\t\t\t     Appeal allowed.\n662<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.I.T., Andhra Pradesh vs M\/S. Vadde Pallaiah & Co on 8 March, 1973 Equivalent citations: 1973 AIR 2434, 1973 SCR (3) 655 Author: K Hegde Bench: Hegde, K.S. PETITIONER: C.I.T., ANDHRA PRADESH Vs. RESPONDENT: M\/S. VADDE PALLAIAH & CO. DATE OF JUDGMENT08\/03\/1973 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. REDDY, P. JAGANMOHAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-172338","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.I.T., Andhra Pradesh vs M\/S. 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