{"id":196263,"date":"1986-06-20T00:00:00","date_gmt":"1986-06-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-prem-das-on-20-june-1986"},"modified":"2017-10-12T03:46:49","modified_gmt":"2017-10-11T22:16:49","slug":"income-tax-officer-vs-prem-das-on-20-june-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-prem-das-on-20-june-1986","title":{"rendered":"Income-Tax Officer vs Prem Das on 20 June, 1986"},"content":{"rendered":"
Income Tax Appellate Tribunal – Allahabad<\/div>\n
Income-Tax Officer vs Prem Das on 20 June, 1986<\/div>\n
Equivalent citations: 1986 19 ITD 34 All<\/div>\n
Bench: B Mitra, S Banerjee<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 B.C. Mitra, Accountant Member <\/p>\n
1. Shri Prem Das is a partner of a firm styled Banaras Silk Museum, Varanasi having one-third share in the profit and loss of the said partnership business, which was evidenced by a deed dated 9-8-1956. The assessee represented his HUF consisting of himself, his wife and two minor sons in the said partnership business till 14-8-1967, i.e., till the last day of the previous year relevant for the assessment year 1968-69. On that date a partial partition was effected in terms of memorandum of partition of the same date wherein it was mentioned, inter alia, that, out of a credit balance of Rs. 73,352.34 appearing in the name of Shri Prem Das in the books of the partnership business as on 14-8-1967 Rs. 50,000 had been partitioned equally amongst the four members of the HUF and the remaining sum continued to be owned by the HUF as long as it was not partitioned. It was further stipulated that “whereas a partition has also taken place on 14-8-1967 among the four members of the said HUF in respect of the one-third share of the said HUF in the said firm Banaras Silk Museum in the name of Shri Prem Das above to the effect that the said one-third share of the HUF is also partitioned among the four members in equal shares of one-fourth each with effect from 15-8-1967 onwards. The share of profit and loss falling in the name of Shri Prem Das above as one-third share in the said firm from 15-8-1967 onwards is agreed to be shared among the four members in equal shares and the same has ceased to be owned by the said HUF”. The HUF’s claim that there was a partial partition as evidenced by the memorandum of partition dated 14-8-1967 was accepted in appeal by the AAC. The AAC’s order in that regard, according to the assessee’s learned counsel, has been accepted by the department.. The Tribunal in the case of Shri Prem Das, HUF for the assessment year 1968-69 held that the HUF ceased to be a partner in Banaras Silk Museum from 15-8-1967, i.e., subsequent to the assessment year 1968-69. On a reference made under Section 256(1) of the Income-tax Act, 1961 (‘the Act’) against the Tribunal’s order for the assessment year 1968-69, the Hon’ble High Court vide their order dated 20-9-1973 held that the partition would be deemed to be effective from 15-8-1967 as held by the Tribunal.\n<\/p>\n
2. For the assessment years 1969-70 and 1970-71 the revenue again brought to tax the share income of Shri Prem Das in Banaras Silk Museum in the hands of his HUF. The Tribunal, by their order in IT Appeal Nos. 1487 and 1488 (All.) of 1971-72 held vide paragraph 6 of the order that “the claim of the partial partition in respect of both the properties namely : (i) division of Rs. 50,000, and (ii) the division of interest in firm was accepted. Against the order of the AAC the department did not prefer any appeal and, therefore, this finding of partial partition has become final and conclusive. Once the finding on the division of capital and interest in the firm has become final and unless it is disturbed by the higher authorities, in our opinion, it is not open to the department to come to a different finding that interest in the firm was not partitioned on 14-8-1967”.\n<\/p>\n
3. We understand from the assessee’s counsel that both the assessments of Shri Prem Das for 1969-70 and 1970-71 on the basis of the aforesaid order of the Tribunal have become final. The department thereafter reopened the assessments of Shri Prem Das, individual, for the assessment years 1969-70 to 1973-74 with a view to include the share income of the wife and minor sons of Shri Prem Das in the hands of Shri Prem Das, individual along with his own one-fourth share in the partnership business in terms of Section 64 of the Act on the footing that the four members constituted a sub-partnership. The Tribunal by their order in IT Appeal Nos. 2036 to 2040 (All.) of 1976-77 held that there was no sub-partnership but “as a matter of fact it will be nothing but the co-ownership of the one-third share of erstwhile HUF which has been disrupted and same is being represented by Shri Prem Das, the assessee as an agent of the four members of the HUF” (paragraph 6). The Tribunal further observed that no separate accounts had been maintained by the so-called sub-partnership and whatever income was earned from the firm had been credited in the accounts of the respective co-owners in the books of the firm itself. The Tribunal accordingly reversed the AAC’s order and upheld the ITO’s action in clubbing the income of the assessee’s wife in the hands of Shri Prem Das, individual, under Section 64(1) and (2). The AAC’s order deleting the share income of the minors in the hands of Shri Prem Das was maintained by the Tribunal. We have been told that this order of the Tribunal has since become final which means that in the hands of Shri Prem Das, individual, one-fourth share of the income derived from the firm has been finally assessed for the assessment years 1969-70 to 1973-74. Subsequent to the aforesaid Tribunal’s order the department has once again reopened the assessments for the assessment years 1970-71 and 1971-72 of Shri Prem Das on the ground that Shri Prem Das along with his wife and minor sons constituted an AOP for sharing the income from Banaras Silk Museum in which Shri Prem Das held one-third share. There was no compliance to the notice issued under Section 148 of the Act in respect of these two years and, consequently, the ITO passed ex parts orders under Section 144 of the Act by determining the income of Shri Prem Das in the status of an AOP at Rs. 1,71,660 for the assessment year 1970-71 and at Rs. 2,18,380 for the assessment year 1971-72. The Commissioner (Appeals) annulled the aforesaid assessments and hence these appeals by the department raising the following two common grounds :\n<\/p>\n
 Learned Commissioner (Appeals) erred in holding that there was no AOP. Learned Commissioner (Appeals) erred in annulling the assessments. That the order of the Commissioner (Appeals) being erroneous in law and on facts may be set aside and the order of the ITO may be restored.\n<\/p>\n
The assessee also filed cross-objections for both the years which were not pressed during the course of hearing before us.\n<\/p>\n
4. The Supreme Court has observed in the case of G. Murugesan & Bros. v. CIT [1973] 88 ITR 432 that for forming an AOP, the members must join together for the purpose of producing an income, that an AOP could be formed only when two or more individuals voluntarily combined together for a certain purpose, that volition on the part of the members was an essential ingredient, that for receiving dividends from shares, there was no question of any management, and that an association could not be inferred from the mere fact that more than one person jointly owned shares and jointly received the dividends. The said decision was based on an earlier decision of the Supreme Court. In the case of CIT v. Indira Balkrishna [1960] 39 ITR 546 at p. 551 it was observed thus : “therefore, an 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”. The departmental representative with reference to the Allahabad High Court decision in the case of M.K. Dar v. CIT [1982] 138 ITR 801 pointed out that in terms of the agreement dated 14-8-1967 the erstwhile members of the HUF joined together with the sole purpose of sharing the income which has already been earned by Shri Prem Das for and on behalf of the co-owners who were the members of the HUF. There had been, according to the departmental representative, a common venture for producing income and consequently, the assessee was liable to be assessed in the status of an AOP. It has been further stated that the mere fact that the same income has been assessed in the hands of the individual would not make the assessment in the hands of the AOP invalid. In reply, the assessee’s learned counsel relied on the Bombay High Court decision in CIT v. Indramohan Sharma (No. 2) [1982] 138 ITR 699 wherein it has been held that by the mere fact of partition of the joint family, no AOP is brought into being. Our attention was drawn to the observation of their Lordships in the aforesaid case which reads as follows :\n<\/p>\n
 Indeed, if the effect of partition is that each member is separated in status and estate from another, unless there is some further act on the part of such members on the basis of which an inference is drawn that they have combined or joined in a common purpose, it would be difficult to hold that they formed themselves into an association of persons as contemplated by the Income-tax Act. The right to receive the stipulated share of profits from the partnership firm, where the erstwhile karta continued to be a partner, did not flow from any agreement between the parties to carry on any common venture, but that right flowed from the right of a separated member of a Hindu joint family as a result of partition . …(p. 702)<\/p>\n
It has been stated that the share income from the firm had been credited in the accounts of the respective co-owners in the books of the firm itself which implies that the income received on behalf of the divided members diverted by overriding title. Accordingly, it has been urged that the entire share income from the firm styled Banaras Silk Museum cannot be brought to tax in the hands of Shri Prem Das as an AOP. It has been pointed out that even in a case where there was a partial partition in the HUF in respect of the interest of the family in a firm, and the capital continued to stand in the name of the HUF as also in fact that the share of profit was being credited to the single account in the books of the partnership as before, it was held by the Orissa High Court in the case of Narayan Nepak v. CIT [1982] 136 ITR 133 that the members of the HUF did not constitute an AOP and were not liable to be assessed in such status.\n<\/p>\n
5. The Allahabad High Court decision in the case of M.K. Dar (supra) on which reliance has been placed by the departmental representative is distinguishable on facts with the present case. In that case two individuals purchased a land jointly on which a cinema theatre was constructed. There was an agreement for lease of the cinema theatre. The actual lease agreement consisted of two documents, one a lease of the building and the second a lease of the furniture and fixtures provided in the theatre. There was a special clause in the second agreement that the furniture and fixtures would not be removed and would continue to be used for the same purpose. In the original assessment, one of the parties to the agreement was assessed as an individual on half of the income from the lease and two sons of the other party to the agreement were assessed each in respect of one-fourth of the income from the lease. The ITO sought to assess the income of the entire lease in the hands of the two individuals as an AOP. Before the ITO it was contended that since both the parties had already been assessed as individuals, the proceedings to assess them as an AOP were incorrect. The High Court held that the material on record showed that there had been a joint purchase of the land and the construction of the theatre had been jointly undertaken. Subsequently, in the lease deed also there was no specification of shares nor specification of shares of the investment or expenditure. It was accordingly held that there had been a common venture for producing income and the assessees were assessable as an AOP even though they had been assessed in the hands of both the individuals. The High Court in deciding the issue considered the Supreme Court decision in the case of G. Murugesan & Bros. (supra) and at page 805 it was observed that “here the position is quite different. The two persons concerned purchased the land obviously with a view to embark upon a joint venture of constructing a cinema building. During the course of its construction they thought of letting it out instead of running a business in it. There was no specification of share in the investment between the two persons. Subsequently, also in the lease deeds there was no specification of share nor any indication of specification of share or of investment or expenditure. The aim initially was to embark upon a joint venture of constructing a building and running in it either a commercial business or letting it out. That aim continued. An intention of common management or use of the property is quite evident in the present case”. In the case before us Shri Prem Das continued to be the partner in the firm by virtue of an agreement contained in the deed of partition and it is not in dispute that the profits received by the assessee Shri Prem Das were received for and on behalf of the members of the erstwhile joint family who are entitled to the respective shares in their own independent right. The partition claimed by the HUF has been accepted by the department. In the books of the firm one-third share of the partner Shri Prem Das who represented the HUF till 14-8-1967 had been credited in the accounts of the respective co-owners. Therefore, following the ratio of the Bombay High Court in the case of Indramohan Sharma (No. 2) (supra) we hold that in absence of the material to show that the divided members joined for a common purpose, it cannot be held that they formed themselves into an AOP. The ITO, as we have noted earlier, formed his opinion by referring to the agreement dated 14-8-1967 that Shri Prem Das along with the disrupted members of the HUF constituted an AOP. The said agreement is the memorandum of partition which in its entirety has been accepted by the department. No other material has been brought to our notice to show that apart from what has been mentioned in the memorandum of partition, the members of the erstwhile HUF joined in a common venture for producing an income. We accordingly uphold the order of the Commissioner (Appeals) annulling the assessments made on Shri Prem Das in the status of an AOP.\n<\/p>\n
6. Before parting with this case we may point out that the departmental representative stated that the Commissioner (Appeals) ought to have held that the correct status of the assessee was that of ‘body of individuals’. This was not the case of the ITO nor of the department as would be evident from the grounds of appeal. Even otherwise the contention raised on behalf of the departmental representative does not stand in view of the Supreme Court decision in the case of CIT v. K. Adinarayana Murty [1967] 65 ITR 607 which has been followed by the Delhi High Court in the case of Ravinder Narain v. ITO [1974] 96 ITR 612. We may also refer in this connection the Allahabad High Court decision in Madanlal Agarwal v. CIT [1982] UPTC 1069. It has to be remembered that the assessments were made by issue of notices under Section 148 after obtaining the prior approval of the Commissioner. In such circumstances, the ITO had no jurisdiction to frame the assessments in the status of ‘body of individuals’ on Shri Prem Das when admittedly the notices were issued on Shri Prem Das in the status of an AOP.\n<\/p>\n
7. In the result, both the departmental appeals are dismissed and the cross-objections being infructuous are also dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Income Tax Appellate Tribunal – Allahabad Income-Tax Officer vs Prem Das on 20 June, 1986 Equivalent citations: 1986 19 ITD 34 All Bench: B Mitra, S Banerjee ORDER B.C. Mitra, Accountant Member 1. Shri Prem Das is a partner of a firm styled Banaras Silk Museum, Varanasi having one-third share in the profit and loss […]<\/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":[1],"tags":[],"class_list":["post-196263","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nIncome-Tax Officer vs Prem Das on 20 June, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-prem-das-on-20-june-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Income-Tax Officer vs Prem Das on 20 June, 1986 - 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