{"id":258387,"date":"1986-10-31T00:00:00","date_gmt":"1986-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-y-v-subba-rao-on-31-october-1986"},"modified":"2018-12-18T10:23:45","modified_gmt":"2018-12-18T04:53:45","slug":"income-tax-officer-vs-y-v-subba-rao-on-31-october-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-vs-y-v-subba-rao-on-31-october-1986","title":{"rendered":"Income-Tax Officer vs Y.V. Subba Rao on 31 October, 1986"},"content":{"rendered":"
Income Tax Appellate Tribunal – Hyderabad<\/div>\n
Income-Tax Officer vs Y.V. Subba Rao on 31 October, 1986<\/div>\n
Equivalent citations: 1987 20 ITD 569 Hyd<\/div>\n
Bench: K Viswanathan, T R Rao<\/div>\n

ORDER<\/p>\n

K.S. Viswanathan, Accountant Member <\/p>\n

1. A point on the interpretation of Section 176(3A)<\/a> of the Income-tax Act, 1961 (‘the Act’) arises in this appeal. The assessee is an individual. He had submitted his estimates for tenders called for by the Electricity Board for construction of two aquaducts in lower Sileru Project. The tender was submitted in July 1971 at rates 10.63 per cent and 8.34 per cent in excess over sanctioned estimate rates. The Electricity Board accepted these tenders and entered into an agreement on 5-5-1972.\n<\/p>\n

2. In order to effectively carry out the contracts, three different partnership firms were constituted which undertook the work in three separate sections. The three firms were (1) Y.V. Subba Rao & Co. (2) Ramakrishna Constructions, and (3) Srinivasa Constructions. The first firm had its headquarters at Secunderabad, the second firm at Hyderabad and the third firm at Visakhapatnam. In all these firms Subba Rao was a partner. The three firms actually carried out the contract works and filed the income-tax returns in respect of the profits arising to them. The department had accepted that the firms were genuine and had granted registration. The construction work was over by 1976. Thereafter, the firms had no contract works.\n<\/p>\n

3. Because of certain reasons which are not necessary to narrate the contracted amount was found to be inadequate to carry out the work tendered for. The assessee, therefore, approached the Electricity Board for certain additional payments. The Board was agreeable to make certain additional payments and had offered certain amounts but the assessee did not accept the same as satisfactory.\n<\/p>\n

4. Thereupon as per the contract, the matter was referred to an arbitrator. The arbitrator awarded a payment of Rs. 7,46,471 by his award dated 19-12-1976. This award was subsequently confirmed by the city civil court. The assessee received the payment on 17-2-1979.\n<\/p>\n

5. The ITO was of opinion that the receipt of Rs. 7,46,471 represented income assessable in the hands of the assessee under Section 176(3A)<\/a>. Since the assessment has already been completed, he reopened the assessment under Section 148<\/a> of the Act. In the course of the assessment proceedings, the assessee submitted that the amount of Rs. 7,46,471 cannot be assessed in his hands. He submitted that though the contract was obtained in his name the execution of the works was entrusted to three firms and the assessee was only a partner. After the receipt of this additional amount, it has been allocated among three firms on the basis of the work executed by them and these amounts have been passed on to the partners concerned. It was also submitted that the amount in question should be considered in the assessment of the three firms for the relevant assessment years and not in the personal assessment of the assessee.\n<\/p>\n

6. The ITO did not accept the assessee’s contention. According to him, the three firms have discontinued their business and they have not done any work. They did not have any existence after the work was completed. Therefore, the receipt in question has to be brought to tax in the assessee’s hands under Section 176(3A)<\/a>. He supported this finding by citing the decision of the Madras High Court in the case of CIT v. Estate of Late A.V. Viswanatha Sastri<\/a> [1980] 121 ITR 270.\n<\/p>\n

7. The assessee appealed. The Commissioner (Appeals) first gave a finding that the work were actually executed by the three firms and not by the assessee individual. Therefore, although the contract was in the name of the assessee the beneficiaries of the contract were three firms. He pointed out that this position has been accepted by the department in the assessments of three firms. He further pointed out that the ITO assessing the three firms was aware that the firms had, through the assessee, approached the Electricity Board for additional payments.\n<\/p>\n

8. The Commissioner (Appeals) then gave a finding that the provisions of Section 176(3A)<\/a> cannot be invoked. He pointed out that in respect of a dissolution or discontinuance of business in a firm only the special provisions of Section 189<\/a> of the Act would apply and the general provision of Section 176(3A)<\/a> would not be applicable. Even assuming that Section 176(3A)<\/a> would apply, he pointed out that there must be a finding of discontinuance of business. A mere suspension of business would not be enough. The mere fact that the businessman has not been able to obtain a contract for same time was not mean that the business had ceased to exist. He pointed out that the three firms continued to keep the accounts open for collecting the additional amounts of claim sanctioned as per the arbitrator’s award. So he gave a finding that there was no discontinuance of business and so the provisions of Section 176(3A)<\/a> must not be applicable. He also gave a finding that Section 189<\/a> would also be not applicable. That was also for the same reason that there was no discontinuance of business. The firm has not been dissolved under Section 40<\/a> of the Indian Partnership Act, 1932 and these partnerships were partnerships at will. Even if one can assume that there was discontinuance of the partnership business, the assessment according to the Commissioner has to be made of the total income of the concerned firms as if no such dissolution had taken place. In other words, the concerned firms must be assessed separately for the assessment years and in any event the entire additional contract amount awarded by the arbitrator cannot be treated as the income of the assessee.\n<\/p>\n

9. The department has come on appeal. Shri Satyanarayana for the department submitted that the Commissioner (Appeals) had missed the main point made by the ITO. He pointed out that Section 176(3A)<\/a> includes two fictions. The first fiction is that the receipt after the discontinuance of business is income and the second fiction is that the income is that of the recipient. According to him, it was a simple matter of finding out who was the recipient. Undoubtedly, the assessee was recipient of the money. Therefore, by virtue of deeming provisions in Section 176(3A)<\/a>, the income must be assessed in the assessee’s hands. He then submitted that there was no evidence at all for the finding of the Commissioner that the business has not been discontinued. He pointed out that the Commissioner had placed reliance on the keeping of accounts for collecting the additional amounts. This will be found in paragraph 12 of his order. But, he pointed out that this was not an evidence to show that the sum received had been distributed to the partners. The balance sheet of 31-3-1978 of any of the three firms do not reflect such a distribution. He then submitted that the business has been discontinued and the three firms had not drawn up any profit and loss account at all after 1976. He, therefore, submitted that the three firms had discontinued business and the amount was received by the assessee after such discontinuance and, therefore, the requirements of Section 176(3A)<\/a> are satisfied and the ITO was justified in including this amount.\n<\/p>\n

10. Shri Parthasarathy, for the assessee, submitted that the contention of the department that no profit and loss account has been drawn up after 1976 is not correct. He placed before us the profit and loss account of the three firms drawn up for the subsequent years. He then submitted that the amount received in arbitration has been allocated among three firms and all the three firms had offered for assessment these receipts. He placed before us the assessment order of one of the firms Y.V. Subba Rao & Co., for the assessment year 1978-79. In that assessment order, the ITO has made a reference to the arbitration amount of Rs. 2,71,793 pertaining to that firm and he has also stated that this would be assessed in the assessment years 1974-75 to 1977-78. For the assessment year 1977-78, the ITO had brought to tax Rs. 28,327. He then made submission that all three firms continued to exist and their business has not been discontinued. He also submitted that the provisions of Section 189<\/a> should be considered and not the provisions of Section 176(3A)<\/a> because the provisions of Section 189<\/a> are special provisions relating to firms.\n<\/p>\n

11. We have considered the submissions. The first question to be decided is whether the three firms had discontinued their business. If the business has not been discontinued, then the provisions of Section 176<\/a> (3A) would not be applicable. For the same reasons as pointed out by the Commissioner, the provisions of Section 189<\/a> also would not be applicable. We will consider each of the three firms separately. We will first take up Y.V. Subbarao & Company. This firm was constituted by a partnership deed dated 7-1-1969. The preamble of the deed states that the business of the partnership shall be of contract works of civil, mechanical or electrical. It further states that Shri Madhava Rao who is one of the partners had tendered to obtain contract works from the Superintending Engineer, Jagtial and in view of the requirement of capital and persons he approached the other partners to join him as partners who accepted the offer and executed the same for the benefit of all. It will be seen from the narration that this firm was primarily constituted for carrying out the work obtained on tender by Madhava Rao. In the assessment proceedings for the year 1977-78, it has been placed before the department that the firm was constituted for executing contract works at lower Sileru Project. The profit and loss account also showed that the receipt is only from the contract works at lower Sileru.\n<\/p>\n

12. The second firm to be considered is Ramakrishna Constructions. This was constituted by a partnership deed dated 25-7-1973. The preamble states “whereas Shri Y.V. Subba Rao has tendered and obtained the contract work of Gangawada aquaduct from Andhra Pradesh State Electricity Board, Lower Sileru Project, Donkarayi. In view of the requirement of capital and persons to look after the work he approached parties Nos. 1 and 3 to 9 to join him as partners who have accepted the offer”. This partnership firm has been constituted only to carry out the work at lower Sileru. The third firm Srinivasa Constructions was constituted by a deed dated 20-3-1974 and it is identical with the partnership deed of Ramakrishna Constructions. There is an identical preamble and identical requirement of other partners to look after the work.\n<\/p>\n

13. Since these three firms had been constituted to carry out the tenders accepted by Subba Rao and since it is an admitted position that the contracted work is completed, the firms have also completed their business. On this face of evidence that is firms having been constituted for the specific work, an inference can be drawn that the business is discontinued when the work contracted for was completed. We do not say that it is conclusive. Unless there is material to show that the firms continued to do business thereafter also it will be reasonable to draw an inference that the business was closed.\n<\/p>\n

14. Now the assessee’s attempt is to show that the firm continues to exist and, therefore, there is no discontinuance of business. It is an admitted position that after 1976 no other contract work has been done by the three firms. Some sort of books have been maintained but these were maintained only for the extra contract receipts likely to come on account of the arbitration. In other words, the three firms continue to exist only to collect the outstandings. It is on this account that a case is made out that the firm continues to exist and the business has not been discontinued. We are at present not concerned with the question whether the firm continues to exist. We are concerned with the question whether there is discontinuance of business. Discontinuance of business is synonymous with closure of business. In Gladstone Development Co Ltd. v. Strick 30 TC 131 it was held that discontinuance connotes a complete closing down of the business or profession and a cesser of all the operations immediately. Now, the only activity of the assessee is maintaining books in anticipation that some further amounts can be collected on arbitration. This does not amount to any business activity. In CIT v. Lahore Electric Supply Co. Ltd<\/a>. [1966] 60 ITR 1 (SC) it has been laid down that activities intended for collecting of debts of business contracted earlier would not amount to continuing of business. This ratio had been applied by the Kerala High Court in the case of S.P.V. Bank Ltd. v. CIT<\/a> [1980] 126 ITR 773. In that case also, a bank whose banking business had been taken over by another scheduled bank continued in existence and were taking steps for the realisation of the amounts outstanding. The Kerala High Court held that this would not amount to continuing business. Since no other activity has been shown to be carried on by the three firms, we must come to a finding that the three firms have discontinued their business.\n<\/p>\n

15. The next question is whether in view of the finding that the firms have discontinued the business, the provisions of Section 176(3A)<\/a> would be applicable in preference to Section 189<\/a>. Both the Commissioner (Appeals) and the assessee have preferred the view that Section 189<\/a> would apply. In our opinion, there is no question of the special provisions being considered in preference to the general provisions. In our opinion, provisions of Section 189<\/a> and provisions of Section 176(3A)<\/a> operate in entirely different field. Therefore, the maxim that the special provisions would apply over the general provisions has no application.\n<\/p>\n

16. The provisions contained in Chapter XVI-C deals with changes in the constitution, succession and dissolution of firms. Section 189(1)<\/a> states that where any business or profession carried on by a firm has been discontinued or where the firm is dissolved, the ITO shall make an assessment of the total income of the firm as if no such discontinuance or dissolution had taken place and all the provisions of the Act would be applicable. Sub-section (2) gives the powers given by Sub-section (1) to the ITO to the appellate authorities. Sub-section (3) requires every person connected with the firm at the time of dissolution and discontinuance to be jointly and severally responsible for the tax or penalty payable by the firm. Sub-section (4) provides for the continuance of proceedings where a firm is discontinued in the middle of the assessment year. These provisions contained in Section 189<\/a> were required to be placed in the statute to overcome some difficulties which were felt otherwise in the assessments of dissolved firms. Its forerunner was Section 44<\/a> of the Indian Income-tax Act, 1922 (‘the 1922 Act’). That section was found to be necessary because in its absence there was no machinery to bring to tax the income of the dissolved firm. Thus, the section contains procedural provisions and it enables the department to assess levy and recover tax from the partners of the dissolved firm or the firm, which had discontinued business. It does not contain any deeming provisions either that the receipts after dissolution would be income or that it would be the income of the recipient.\n<\/p>\n

17.  The above   two fictions,  i.e., the receipts after dissolution is income and further that it is the income of the recipient is contained in  Section 176(3A)<\/a>.    Thus,  Section 176(3A)<\/a> takes  of or continues   from   where Section 189<\/a> leaves off. Thus, they operate entirely in two   different fields. Section   176(3A)<\/a> is  a substantive provision insofar as it brings a liability to tax in the hands of the recipient. Therefore, we do not agree with the Commissioner's finding on this point. We also reject the submissions of Shri Parthasarathy on this point.\n \n\n18.  This  takes  us to  consider  whether the receipt of Rs. 7,46,471 is to be assessed in the hands of the recipient Shri Y.V.   Subba Rao  in his individual capacity.   The entire argument of the department is contained in the provisions of Section 176(3A)<\/a> which we will reproduce below :\n  (3A) Where any business is discontinued in any year, any sum received after the discontinuance shall be deemed to be the income of the recipient and charged to tax accordingly in the year of receipt, if such sum would have been included in the total income of the person who carried on the business had such sum been received before such discontinuance. \n\n \n\n<\/pre>\n
This sub-section was introduced by the Taxation Laws (Amendment) Act<\/a>, 1975 with effect from 1-4-1976. This provision is similar to the provisions contained in Section 176(4)<\/a>. Both the sub-sections were introduced to overcome a difficulty found in the assessment of discontinued profession and business. Under the 1922 Act, the Supreme Court held in the case of Nalinikant Ambalal Mody v. S.A.L. Narayan Row [1966] 61 ITR 428 that the profits and gains of profession received after the profession was discontinued was not chargeable to tax. In the case of CIT v. Amarchand N. Shroff<\/a> [ 1963] 48 ITR 59, the Supreme Court has held that the income of the deceased assessee received by the heirs later than the year of his death was not liable to be taxed. Section 176(4)<\/a> was introduced to overcome this position and to enable the department to tax the receipts even after the profession was discontinued. However, Section 176(4)<\/a> covered only the receipts from profession. It did not cover the receipts from business after the business was discontinued. When this lacuna was found out the Act was amended and Sub-section (3A) was introduced with effect from the assessment year 1976-77. The Madras High Court decision relied on by the ITO is a decision on the interpretation of Section 176(4)<\/a>. The only difference between the provisions of Section 176(4)<\/a> and Section 176(3A)<\/a> is that the latter section would apply to businesses. Therefore, the principle laid down in the Madras High Court decision would be applicable to a case covered by Section 176(3A)<\/a>.\n<\/p>\n
19.  We, therefore, see that one of the  conditions   for applying the subsection is satisfied and the business from  which  the  receipts  arose have been discontinued. It is unnecessary to go into the question  whether this receipt is   income because   the  sub-section itself deems it to be so. The only other  point  to  be  seen is the  question  whether it is income of the recipient. According to  the   department,   since   Shri   Subba  Rao   the assessee received  it,  the amount is assessable in his hands only. In other words, although the department  agrees that  the receipt pertains to the business of three firms, nevertheless it will be  assessable in the hands of Shri Subba Rao because he has received it. Such an interpretation of the section is an over-simplification. It will be evident if we take an example of say, bank being instructed to collect the amounts. In that case, the bank will be the recipient. The department cannot try to assess the receipts in the hands of the bank on the ground that the bank was the recipient. Therefore, the question is not who was the actual physical recipient of the money.\n<\/p>\n
20.  In this connection, we may refer to the   charging section,  that is, Section 5<\/a> of the Act which brings to charge any income which is received or deemed to be received in India. It is well settled that  the  words used in Section 5<\/a> relate to  the first  receipt after the  accrual of income. The receipt of income refers obviously to the first occasion  when the recipient gets the   money under his  own  control. In other words,  the recipient should receive the money because he is entitled to it. His  rights over the receipts  should be such  that   after the   receipt   of money   he   is not answerable to anyone    else.   In   other   words, again he should be the beneficiary of the receipts. These are very well settled propositions in law and are based on very old and hoary decisions like B.M. Kamdar, In re [1946]  14 ITR   10   (Bom.)   and   Pondicherry   Railway Co. Ltd. v. CIT<\/a> 5 ITC 363 (PC) and CIT v.  Diwan  Bahadur S.L.  Mathias<\/a> [1939] 7 ITR 48 (PC).\n<\/p>\n
21.  If we understand the expression  ‘recipient’  to  mean the beneficiary who is entitled to the monies then it will  be at once apparent that the person who receive the money and who in his turn has to account for it and remit it to others cannot be considered as the recipient for the purpose of Sub-section (3A).\n<\/p>\n
22.  There is a reason why the expression ‘recipient’ which has a larger sweep has been used in this sub-section. It is done deliberately. Now  the discontinuance of business would apply to several types of assessees. In the case of an individual who is dead the receipts after his death will no doubt be assessed in the hands of legal representatives but without this provision it may not be possible to treat it as income. That was precisely the situation in Estate of A.V. Viswanatha Sastri’s case (supra). It might happen in the case of joint family which had been partitioned fully. It might happen in the case of a firm which is discontinued or dissolved. It might happen in the case of a company, a co-operative society or a corporate entity which is gone into liquidation. In all these cases, the person who receives any amount due  after the discontinuance,   partition,   death,   etc.,  is a different person. It will make the sub-sections, that is (3A)  and (4), very cumbersome if the successors in all  such cases are to be mentioned by their legal denominations.   Instead  of that the Legislature deliberately chose the expression ‘recipient’. This expression takes within itself all the possible successors entitled to receive any funds in the case of discontinuance of business. If we keep this in mind it would be seen that the recipient who will be assessed can only be the recipient who is beneficially entitled to the income embedded in the receipts.\n<\/p>\n
25. Therefore, we come to a finding that Y.V. Subba Rao individually no doubt received the amounts but he is not the recipient of these funds. He has to account for it to the three firms who had actually done the work and, therefore, who are entitled to these receipts. Shri Subba Rao, therefore, received it only in the capacity of a trustee or as a representative being himself a partner of the three firms. The beneficiaries are the recipient or the three firms or their partners. They have to be assessed in respect of these receipts. We, therefore, agree with the findings of the Commissioner though for entirely different reasons.\n<\/p>\n
24. In the result, the appeal stands allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Income Tax Appellate Tribunal – Hyderabad Income-Tax Officer vs Y.V. Subba Rao on 31 October, 1986 Equivalent citations: 1987 20 ITD 569 Hyd Bench: K Viswanathan, T R Rao ORDER K.S. Viswanathan, Accountant Member 1. A point on the interpretation of Section 176(3A) of the Income-tax Act, 1961 (‘the Act’) arises in this appeal. The […]<\/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-258387","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nIncome-Tax Officer vs Y.V. 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