{"id":90055,"date":"1967-07-26T00:00:00","date_gmt":"1967-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-m-ipoh-ors-vs-commissioner-of-income-tax-on-26-july-1967-2"},"modified":"2018-01-25T19:50:55","modified_gmt":"2018-01-25T14:20:55","slug":"m-m-ipoh-ors-vs-commissioner-of-income-tax-on-26-july-1967-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-m-ipoh-ors-vs-commissioner-of-income-tax-on-26-july-1967-2","title":{"rendered":"M. M. Ipoh & Ors vs Commissioner Of Income-Tax, … on 26 July, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. M. Ipoh & Ors vs Commissioner Of Income-Tax, … on 26 July, 1967<\/div>\n
Equivalent citations: 1968 AIR 317, \t\t 1968 SCR (1)\t 65<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nM.   M. IPOH & ORS.\n\n\tVs.\n\nRESPONDENT:\nCOMMISSIONER  OF INCOME-TAX, MADRAS\n\nDATE OF JUDGMENT:\n26\/07\/1967\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSIKRI, S.M.\nRAMASWAMI, V.\n\nCITATION:\n 1968 AIR  317\t\t  1968 SCR  (1)\t 65\n CITATOR INFO :\n R\t    1970 SC1589\t (10)\n\n\nACT:\nIncome-tax Act, 1922, s. 3--Whether violative of Art. 14  of\nthe  Constitution--Quasi-Judicial  function  of\t  Income-tax\nOfficer\t in  assessing\tincome to tax and  duty\t to  prevent\nevasion--If   constitute  sufficient   guidance--Individuals\nminor  and  firm trading  together--Whether  association  of\npersons--Whether doctrine of res judicata applies to finding\nin  assessment\tproceedings  in\t one  year  in\trelation  to\nproceeding  for\t another  year--Whether\t determination\t and\ndeclaration  necessary as to who is principal officer of  an\nassociation  of persons before assessment  proceedings\ttake\nplace.\n\n\n\nHEADNOTE:\nThe  Karta  of\ta Hindu undivided  family  was\tassessed  to\nIncometax from year to year until the assessment year  1953-\n54 either as an individual or as the Karta.  But later,\t the\nIncome-Tax  Officer issued notices to him under s. 34(1)  of\nthe  Income-tax Act, 1922, for the assessment years  1951-52\nto  1953-54  and under s. 22(2) for the years\t 1954-55  to\n1956-57 for assessment of the income as having been received\nby an association of persons consisting of the Karta and his\nminor  son  in 1951-52, and the Karta, his minor son  and  a\nfirm  in  the  years 1952-53 to 1956-57,  and  assessed\t the\nincome received as income and associations of persons.\t The\nAppellate  Assistant  Commissioner  and\t the  Tribunal,\t  in\nappeals filed before them, substantially confirmed the order\nof   the  Income-tax  Officer.\t The  High  Court,  upon   a\nreference.  held  that the income for  the  assessment\tyear\n1951-52\t did E not accrue to an association of persons,\t but\nconfirmed  the\tview  taken by\tthe  Income-tax\t Officer  in\nrespect of the income for the year- 1952-53 to 1956-57.\nThe  Karta then moved the High Court under Art. 226  of\t the\nConstitution and contended that s. 3 of the Income-tax\tAct,\n1922,  invested\t the Income-tax Officer with  arbitrary\t and\nunguided  power\t to assess the income of an  association  of\npersons\t in the hands either   of the association or of\t the\npersons\t constituting  that  association  and  it  therefore\noffended  Art.\t14  of the  Constitution.   The\t High  Court\nrejected the petitions.\nIn  appeals to this Court against the decisions of the\tHigh\nCourt in the writ petition and the reference under s. 66  of\nthe Income tax Act.\nHELD:(i) S. 3 of the Income-tax Act, 1922, was not violative\nof Art. 14 of the Constitution.\t The duty of the  Income-tax\nOfficer\t   is to administer the provisions of the Act in the\ninterests  of  public  revenue, and to\tprevent\t evasion  or\nescapement of tax legitimately ,due to the State.  Though an\nexecutive Officer engaged in the administration of the\tAct.\nthe  function  of the Income-tax  Officer  is  fundamentally\nquasi-judicial.\t  His  decision to bring to tax\t either\t the\nincome of the association collectively or the shares of\t the\nmembers\t of the association separately is not final:  it  is\nsubject\t to appeal  to the Appellate Assistant\tCommissioner\nand to the Tribunal.  The nature of the authority  exercised\nby  the Income-tax Officer in a proceeding to assess to\t tax\nincome,\t and  his duty to prevent evasion or  escapement  of\nliability  to  pay tax legitimately due to the\tState,\tcon-\nstitute adequate enuciation of Principles and policy for the\nguidance of the Income-tax Officer. [72B-H]\n66\nSuraj  Mall Mohta & Co. v. A. V. Visvanatha Sastri and\tAnr.<\/a>\n(1954) 26 I.T.R. 1, distinguished.\nShri  Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar\t and\nOrs.<\/a>  [1959] S.C.R. 279, Jyoti Pershad v. The  Administrator<\/a>\nfor  the Union Territory of Delhi. [1962] 2 S.C.R.  125\t and\nCommissioner  of Income-tax U.P. v. Kanpur  Coal  Syndicate,<\/a>\n(1964) 53 I.T.R. 225. referred to,\nThere  is  no  force in the contention that s.\t23A  of\t the\nIncome-tax  Act,  as it was incorporated by Act 21  of\t1930\nlaid down certain principles for the guidance of the  Income\nTax  Officer in exercising his option, but since  the-repeal\nof  that section by Act 7 of 1939, the discretion vested  in\nthe  Income-tax Officer to select either the income  of\t the\nassociation or the individual member is unfettered.  By\t the\nrepeal of s. 23A(1) the essential nature of the power of the\nIncometax  Officer was not altered.  He remained  as  before\nunder  a  duty\tto administer the Act, for  the\t benefit  of\npublic\trevenue,  but  his  powers  were  to  be   exercised\njudicially  and so as to avoid double taxation of  the\tsame\nincome. [73A-B; 74F-G]\n(ii) There was abundant material on the record to prove that\nthe Karta, his minor son and the firm formed an\t association\nin the years 1952-53 to 1956-57.\nUnder  s.  2(9) of the Income-tax Act, 1922, read  with\t el.\n(42)  of  3 of the General Clauses Act, a firm is  a  person\nwithin\tthe meaning of the Income-tax Act and a firm and  an\nindividual  or group of individuals may form an\t association\nof persons within the meaning of s. 3 of the Income-tax Act.\n[75F, G]\nThere is nothing in the Act to indicate that a minor  cannot\nbecome\ta  member  of  an association  of  persons  for\t the\npurposes  of  the  Act.\t In any event  the  High  Court\t had\nrightly\t held that the mother and guardian of the minor\t son\nmust,  on  the facts, be deemed to have\t given\ther  implied\nconsent to the participation of the minor in the association\nof persons. [75H]\nCommissioner of Income-tax, Bombay v. Laxmidas & Anr. (1937)\nI.T.R.,\t 584 and Commissioner of Income-tax,  Bombay  North,\nKutch Saurashtra v. Indira Balkrishna,<\/a> (1960) 39 I.T.R. 546,\nreferred to.\n(iii)The doctrine of res judicata does not apply so  as\nto  make  a  decision  on a question of fact  or  law  in  a\nproceeding  for\t assessment in one year binding\t in  another\nyear.\tThe  assessment and the facts found  are  conclusive\nonly in the year of assessment: the finding on questions  of\nfact  may be good and cogent evidence in  subsequent  years,\nwhen  the  same question falls to be determined\t in  another\nyear  but they are not binding and conclusive.\tThe  finding\nrecorded  by the High Court that in the year  1951-52  there\nwas  no association of persons constituted by the Karta\t and\nhis  minor son did not in 'the present case have any  effect\non the finding of the Tribunal that in year 1952-53 and\t the\nsubsequent years such an association existed.\tFurthermore,\nthe  association of persons which traded in 1952-53 and\t the\nsubsequent years was different from the association in 1951-\n52  because in 1952 an association was formed of the  Karta,\nhis son and a firm. [75B-C]\n(iv)If\tthe person described as a principal officer of\tan.\nassociation  is duly served with a notice under s. 23(2)  in\nthe  manner prescribed by s. 23(2), an adjudication  of\t his\nstatus\t as   the  principal  officer,\t before\t  assessment\nproceedings  may take place, is not obligatory.\t  The  order\nassessing the association containing a finding that the per.\nson served is the principal officer is sufficient compliance\nwith the\n67\nrequirements of the statute.  It is open to the\t association\nto challenge the finding of the Income-tax Officer in appeal\nbefore\tthe Appellate Assistant Commissioner and in  further\nappeal\tto the Appellate Tribunal.  But the order  declaring\nhim  as the principal officer of an association\t of  persons\nwill not be deemed to be void merely because the  proceeding\nfor  assessment\t was not preceded by a\tdeclaration  of\t his\nstatus as the principal officer. [80G-81B]\nCommissioner  of  Income-tax,  Punjab &\t N.W.F.P.  v.  Nawal\nKishore Kharaiti Lal,<\/a> (1938) 6 I.T.R. 61, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1060-\t1064
\nof 1965.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nApril  3. 1961 of the Madras High Court in Tax Case No.\t 201
\nof 1960.\n<\/p>\n
\t\t\t    AND
\nCivil Appeals Nos. 1103-1107 of 1966.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nNovember 29, 1963 of the Madras High Court in Writ Petitions
\nNos. 1374-1378 of 1961.\n<\/p>\n
M.   M.\t Nambiyar,  K.\tNarayanaswami,\tB.  Manivannan,\t  B.
\nParthasarathy,\tJ. B. Dadachanji, O.C. Mathur  and  Ravinder
\nNarain, for the appellants (in all the appeals).
\nS.  T. Desai, R. Ganapathy Iyer and R. N. Sachthey, for\t the
\nrespondent (in all the appeals) and for the Attorney-General
\nfor India (in C. As.  Nos. 1103-1107 of 1966).
\nThe Judgment of the Court was delivered by
\nShah,  J.-Meyyappa (1), Alagammal his wife, and\t Chokalingam
\nand Meyyappa (11) his two minor sons formed in 1940 a  Hindu
\nUndivided  Family which traded in the name of  “M.S.  M.M.”.
\nThe  family carried on extensive business in money  lending,
\nrubber\tplantations,  and in real estates in  the  Federated
\nStates of Malaya, Burma and India.\n<\/p>\n
The property of the undivided family was divided between the
\nthree  male members on February 22, 1940.  To  Meyyappa\t (1)
\nwere  allotted at the partition “business of the family”  at
\nRangoon\t and at Karaikudi in the Ramnath District and  three
\nrubber\testates in the Federated States of Malaya  and\tsome
\nhouses.\t Even after the partition Meyyappa (1) continued  to
\nremain in management on behalf of himself and his two  minor
\nsons of all the properties ‘and the businesses carried on by
\nthe  family  when  it was joint,  and  the  businesses\twere
\ncarried on in the name of “M.S.M.M.”.\n<\/p>\n
The houses and the three rubber estates allotted exclusively
\nto Meyyappa (1) were entered in the books of accounts opened
\nin  the name of “M.M. Ipoh” from the date of  the  division.
\nIn
\n68<\/span>
\nDecember  1941 Alagammal gave birth to a son who  was  named
\nChettiappa.  Meyyappa (1) and Chettiappa then constituted  a
\nHindu coparcenary which owned the property and the  business
\nas  allotted to Meyyappa (1) in the partition of  1940.\t  On
\nDecember  30, 1949 a deed of partition was executed  between
\nMeyyappa  (I) and Chokalingam (who had by then attained\t the
\nage of majority) in respect of the businesses carried on  in
\nthe  name  of  “M.S.M.M.”  The\tbusinesses  were  thereafter
\ncarried on in partnership between Meyyappa (1)\trepresenting
\nhimself\t and the minor Chettiappa and  Chokalingam  Meyyappa
\n(II)  was admitted to the benefits of that partnership.\t  On
\nApril  13, 1950 partition was effected between Meyyappa\t (1)
\nand the minor Chettiappa by posting entries in the books  of
\naccount\t of  M.M. Ipoh.\t It was agreed that  the  properties
\nentered\t in the books of account of M.M. Ipoh shall be\theld
\nby Meyyappa (1) and Chettiappa in two equal shares, and that
\nthe properties shall continue to remain in the management of
\nthe  firm  M.S.M.M. to the benefit of which  Chettiappa\t was
\nadmitted.   A deed of partition recording the terms of\tthat
\npartition  was executed on May 28, 1953 by Meyyappa (1)\t and
\nAlagammal acting as Guardan of the minor Chettiappa.
\nIn  1951  Meyyappa (1) acceded to a demand made\t by  Chocka-
\nlingam\ton behalf of the M.S.M.M. firm for a half  share  in
\nthe  “M.M. lpoh properties”.  There was however no  division
\nof the properties by metes and bounds, and the management of
\nthose  properties as a single unit continued to remain\twith
\nthe M.S.M.M. firm as before.\n<\/p>\n
Meyyappa  (1) was assessed under the Indian  Income-tax\t Act
\n1922 to tax year after year till the assessment year 1953-54
\nin  respect of the income from the “M.\tM. lpoh\t properties”
\nas  a respect individual or as a karta of a Hindu  undivided
\nfamily.\t  Later the Income-tax Officer,\t Karaikudi,  Ramnath
\nDistrict,  issued notices under s. 34(1) of  the  Income-tax
\nAct for the assessment years 1951-52 to 1953-54 and under s.
\n22(2) for the years 1954-55 to 1956-57 for assessment of the
\nincome\tof  “an association of persons styled M.  M.  lpoh”.
\nThe  Income-tax Officer rejected the contentions  raised  by
\nMeyyappa (1) that there was no association of persons of the
\nnature\tdescribed  in  the notices and brought\tto  tax\t the
\nincome\tof the “M.M. lpoh properties” as income received  by
\nan  association\t of  persons  formed  by  Meyyappa  (1)\t and
\nChettiappa  in\t1951-52, and by Meyyappa (1),  the  M.S.M.M.
\nfirm and Chettiappa in the years 1952-53 to 1955-57.
\nIn  appeals  filled by M. M. lpoh, the\tAppellate  Assistant
\nCommissioner  confirmed the orders passed by the  Income-tax
\nOfficer subject to the modification that the income from the
\nhouses\tbe assessed under s. 9(3) of the Income-tax  Act  in
\nthe  hands  of\tthe members individually,  and\tnot  as\t the
\ncollective,  income  of\t the association  of  persons.\t The
\nAppellate  Tribunal  confirmed the order  of  the  Appellate
\nAssistant Commissioner,
\n\t\t\t     69<\/span>
\nThe Tribunal drew up a statement of case and submitted under
\ns.  66(1) of the Indian Income-tax Act, the following  ques-
\ntion for determination of the High Court of Madras:\n<\/p>\n
\t      “Whether\tthe assessments on the\t‘Association
\n\t      of  persons’ for assessment years\t 1951-52  to
\n\t      1956-57 are valid?”\n<\/p><\/blockquote>\n
and  declined  to submit a statement’ of the  case  on\tfive
\nother questions, the first out of which alone is material in
\nthese appeals and need be set out:\n<\/p>\n
\t      “Whether on the facts and in the circumstances
\n\t      of  the case, there are any materials to\thold
\n\t      the assessee as the principal officer of\tM.M.
\n\t      lpoh assessed in the status of an\t association
\n\t      of persons?”\n<\/p><\/blockquote>\n
At  the hearing of the reference on the principal  question,
\nthe High Court on the application of the assessee  proceeded
\nto   deal   apparently\twithout\t any  objection\t  from\t the
\nCommissioner with the additional question which had not been
\nreferred by the Tribunal.\n<\/p>\n
The  High Court held that the income brought to tax  in\t the
\nassessment year 1951-52 did not accrue to an association  of
\npersons,  but  the income in the years\t1952-53\t to  1956-57
\naccrued to an association of persons formed by Meyyappa (1),
\nM.S.M.M. firm and the minor Chettiappa.\t The High Court\t was
\nof the view that Meyyappa (1) acted on behalf of  Chettiappa
\nin  forming  the  association,\tthat  the  affairs  of\tthis
\nassociation were under the management of Meyyappa (1) during
\nthe  account years relevant to the assessment years  1952-53
\nto 1956-57, that the association of persons was engaged in a
\njoint  enterprise for the purpose of producing income,\tthat
\nthere  being  “unity purpose and objectivity”  the  ultimate
\nobject\tof the association to earn income on behalf  of\t the
\nmembers\t of  the association was “fully\t established”.\t The
\nHigh  Court also held that by the notices for assessment  of
\nthe income for the years 1952-53 to 1954-55 Meyyappa (1) did
\nin  fact  have\tnotice of the intention\t of  the  Income-tax
\nOfficer\t to  treat  him\t as the\t principal  officer  of\t the
\nassociation,   and  the\t proceedings  for   assessment\t and
\nreassessment  were  properly  commenced.   The\tHigh   Court
\naccordingly by order dated, April 3, 1961 answered the first
\nquestion in favour of the assessee in respect of the assess-
\nment   year  1951-52  and  against  the\t assessee  for\t the
\nsubsequent  five assessment years.  The High Court  recorded
\nin answer to the second question that the Income-tax Officer
\nwas  justified in holding Meyyappa (1) to be  the  principal
\nofficer of “M.M. Ipoh”.\n<\/p>\n
On  November 21. 1961 five petitions were moved in the\tHigh
\nCourt  of  Madras under Art. 226 of the Constitution  for  a
\nwrit of prohibition restraining the Income-tax Officer\tfrom
\nenforcing  the\tdemands made by him in respect\tof  the\t tax
\nassessed against
\n70<\/span>
\n“the  association of persons M.M. lpoh”.  In support of\t the
\npetitions  it was urged that s. 3 of the  Indian  Income-tax
\nAct  invested  the  Income-tax Officer\twith  arbitrary\t and
\nunguided power to assess to tax the income of an association
\nof persons in the hands either of the association or of\t the
\npersons\t constituting that association, and on that  account
\ns.  3 offended Art. 14 of the Constitution, and was to\tthat
\nextent void the High Court rejected the petitions.   Against
\nthe  orders  passed by the High Court in the  petitions\t for
\nwrits,\tMeyyappa  (1)  has  appealed.\tAgainst\t the  orders
\nrecorded  by  the High Court in references under s.  66\t the
\nassociation of persons “M.M. lpoh” has appealed.
\nSection 3 of the Income-tax Act invests the taxing authority
\nwith  an option to assess to tax the income collectively  of
\nthe association of persons, in the hands of the\t association
\nor  in\tseparate shares in the hands of the members  of\t the
\nassociation.  Counsel for the assessee contends that the Act
\nsets  out  no principles and discloses no  guidance  to\t the
\nIncome-tax  Officer  in\t exercising  the  option:  the\t Act
\ntherefore confers arbitrary and uncontrolled authority\tupon
\nthe  Income-tax Officer to select either the association  or
\nits  members for assessment to tax according to\t his  fancy,
\nand may on that account be discriminatively administered  by
\nsubjecting  persons  similarly situate to varying  rates  of
\ntax.\n<\/p>\n
Counsel in support of that plea relied upon the judgment  of
\nthis  Court  in Suraj Mall Mohta & Co. v. A.  V.  Visvanatha
\nSastri and Anr.<\/a>(1) but that case is of little assistance  to
\nthe  assessee.\t In Suraj Mall Mohta’s\tcave(1)\t this  Court
\ndeclared  sub-s.  (4)  of s. 5 of  the\tTaxation  of  Income
\n(Investigation Commission) Act 30 of 1947 and the  procedure
\nprescribed  by that Act, insofar as it affected the  persons
\nproceeded against under that sub-section, invalid as a piece
\nof discriminatory legislation and on that account  offending
\nagainst\t Art.  14 of the Constitution of India.\t  The  Court
\nheld  that sub-s. (4) of s. 5 of Act 30 of 1947\t dealt\twith
\nthe same class of persons who fall within the ambit of s. 34
\nof  the\t Indian Incometax Act 1922 and whose income  can  be
\nbrought to tax by proceeding under that section: The  result
\nin  the\t view of the Court was that some assessees  who\t had
\nevaded payment of tax by failing to disclose fully and truly
\nall material facts necessary for assessment of tax could  be
\ndealt  with  under  Act\t 30 of 1947 at\tthe  choice  of\t the
\nCommission,  though they could also be proceeded with  under
\ns.  34 of the Indian Income-tax Act.  Persons discovered  as
\nevaders of income-tax during an investigation under s.\t5(1)
\nof  Act 30 of 1947, and persons discovered by the  Incometax
\nOfficer to have evaded payment of tax had in the view of the
\nCourt\t  common     properties\t    and………      common
\ncharacteristics”,  and since the procedure prescribed  under
\nAct 30 of 1947 was more
\n\t\t\t     71<\/span>
\ndrastic\t and  deprived the assessee of\tvaluable  rights  of
\nappeal,\t second\t appeal and revision, s. 5(4) of Act  30  of
\n1947   under   which  a\t person\t could\t be   selected\t for
\ndiscriminatory treatment at the choice of the  Investigation
\nCommission was void as infringing tile guarantee of equality
\nbefore the law.\n<\/p>\n
But here no question of application of a more drastric\tpro-
\ncedure,\t or  deprivation of valuable rights  of\t appeal\t and
\nrevision,  by  the  adoption  of  one  of  two\t alternative
\nprocedures arises.  The procedure for assessment is the same
\nwhether\t the  income  is  assessed  in\tthe  hands  of\t the
\nassociation  or the share of each member of the\t association
\nis assessed separately.\t In Shri Rain Krishna Dalmia v. Shri
\nJustice S.  R. Tendolkar and Ors,<\/a>(1) S. R. Das,
\nC.   J., observed at p. 299:\n<\/p>\n
\t      “In  determining the question of the  validity
\n\t      or  otherwise of……… a statute the  court
\n\t      will  not strike down the law Out of had\tonly
\n\t      because no classification appears on its\tface
\n\t      or  because  a  discretion  is  given  to\t the
\n\t      Government   to\tmake   the   selection\t  or
\n\t      classification  but will go on to examine\t and
\n\t      ascertain\t if  the statute has laid  down\t any
\n\t      principle\t or policy for the guidance  of\t the
\n\t      exercise\tof  discretion\tor   classification.
\n\t      After  such  scrutiny, the court\twill  strike
\n\t      down  the statute if it does not lay down\t any
\n\t      principle\t or policy for guiding the  exercise
\n\t      of discretion by the Government in the  matter
\n\t      of selection or classification, on the  ground
\n\t      that  the statute provides for the  delegation
\n\t      of  arbitrary  and uncontrolled power  to\t the
\n\t      Government so as to enable it to\tdiscriminate
\n\t      between  persons or things  similarly  situate
\n\t      and  that,  therefore, the  discrimination  is
\n\t      inherent in the statute itself.”\n<\/p><\/blockquote>\n
In  Jyoti Pershad v. The Administrator<\/a> for the Union  Terri-
\ntory  of  Delhi(1)  this  Court\t observed  that\t where\t the
\nLegislature  Jays down the policy and indicates the rule  or
\nline of action which should guide the authority, Art. 14  is
\nnot  violated, unless the rules or the policy indicated\t lay
\ndown  different criteria to be applied to persons or  things
\nsimilarly  situate.   It is not however\t essential  for\t the
\nLegislature to comply with the guarantee of equal protection
\nthat  the  rules  for the guidance should be  laid  down  in
\nexpress\t terms.\t  Such\tguidance may  be  obtained  from  or
\nafforded  by  (a)  the preamble read in\t the  light  of\t the
\nsurrounding    circumstances\twhich\t necessitated\t the
\nlegislation,  taken in conjunction with well-known facts  of
\nwhich the Court might take judicial notice or of which it is
\napprised  by evidence before it in the form  of\t affidavits,\n<\/p>\n
(b)  or\t even from the policy and purpose of  the  enactment
\nwhich may be gathered from other operative provisions
\n(1)[1959] S.C.R. 279.\n<\/p>\n
(2) [1062] 2S.C.R. 125.\n<\/p>\n
72<\/span><\/p>\n
applicable   to\t analogous  or\tcomparable   situations\t  or
\ngenerally  from\t the  object sought to be  achieved  by\t the
\nenactment.\n<\/p>\n
Section\t 3  of\tthe Income-tax Act does\t not,  it  is  true,
\nexpressly  lay\tdown  any policy for  the  guidance  of\t the
\nIncome-tax  Officer  in\t selecting the\tassociation  or\t the
\nmembers\t individually  as entities in bringing\tto  tax\t the
\nincome\tearned\tby the association.  Guidance may  still  be
\ngathered  from the other provisions of the Act, its  scheme,
\npolicy and purpose, and the surrounding circumstances  which
\nnecessitated  the legislation.\tIn considering\twhether\t the
\npolicy\tor principles are disclosed, regard must be  had  to
\nthe scheme of the Act.\tUnder the Act of 1922 the Income-tax
\nOfficer\t is required to issue a general notice calling\tupon
\nall  persons  whose total income during\t the  previous\tyear
\nexceeds the minimum not chargeable to tax to submit a return
\nof  income.   The  Income-tax  Officer\tmay  also  serve  an
\nindividual  notice  requiring a person whose income  in\t the
\nopinion of the Income-tax Officer is liable to tax to submit
\na return of income.  Primarily the return of income would be
\nmade  by  an association, where the association\t has  earned
\nincome, and the Income-tax Officer would also call upon\t the
\nassociation  to\t submit a return of its\t income,  and  would
\nordinarily proceed to assess tax on the return so made.\t But
\nfor  diverse  reasons,\tassessment  of\tthe  income  of\t the
\nassociation may not be possible or that such assessment\t may
\nlead to evasion of tax.\t It would be open to the  Income-tax
\nOfficer then to assess the individual members on the  shares
\nreceived by them.  The duty of the Income-tax Officer is  to
\nadminister  the provisions of  the Act in the  interests  of
\npublic revenue, and to prevent evasion or escapement of\t tax
\nlegitimately due to the State.\tThough an executive  officer
\nengaged in the administration of the Act the function of the
\nIncome-tax  Officer  is fundamentally  quasi-judicial.\t The
\nIncome-tax Officer’s decision of bringing to tax either\t the
\nincome of the association collectively or the shares of\t the
\nmembers\t of the association separately is not final,  it  is
\nsubject\t to appeal to the Appellate  Assistant\tCommissioner
\nand to the Tribunal. In Commissioner of Income-tax, U.P.  v.
\nKanpur Coal Syndicate<\/a>(1) it was held by this Court that\t the
\nAppellate  Tribunal  has ample power under s. 33(4)  to\t set
\naside an assessment made on an association of persons and to
\ndirect\t the  Income-tax  Officer  to  assess  the   members
\nindividually  or  to  direct  amendment\t of  the  assessment
\nalready made on the members.  Exercise of this power is from
\nits   very  nature  contemplated  to  be  governed  not\t  by
\nconsiderations\tarbitrary but judicial.\t The nature  of\t the
\nauthority   exercised  by  the\tIncome-tax  Officer   in   a
\nproceeding to assess to tax income, and his duty to  prevent
\nevasion\t or escapement of liability to pay tax\tlegitimately
\ndue  to\t tile State, constitute, in our\t judgment,  adequate
\nenunciation of principles and policy for the guidance of the
\nIncome-tax Officer.\n<\/p>\n
(1) [1964] 53 I.T.R. 225
\n73<\/span>
\nCounsel\t for  the appellants contended that s. 23-A  of\t the
\nIncome-tax  Act, as it was incorporated by Act 21  of  1930,
\nlaid down certain principles for the guidance of the Income-
\ntax  Officer  in  exercising  his  option,  but\t since\t the
\nLegislature  by\t Act 7 of 1939 repealed that  provision\t the
\ndiscretion vested in the Incometax Officer to select  either
\nthe  income of the association or the individual members  is
\nunfettered.   To appreciate the argument it is necessary  to
\nset  out in some detail the legislative history.  Under\t the
\nIndian\tIncome-tax  Act,  1922, as  originally\tenacted,  an
\nassociation of persons or individuals was not an entity\t the
\nincome\twhereof\t was  charged  to  tax.\t  By  11.  of\t1924
\n“association of individuals” was added in s. 3 and an entity
\nof  which the income is charged to tax under the  Income-tax
\nAct, but the Act as it stood amended contained no  statutory
\nsafeguard  against  double taxation of income earned  by  an
\nassociation of individuals.  S. 14(1) of the Act (as it then
\nstood  which aimed at avoiding double taxation of  the\tsame
\nincome\twas  applicable to the income of a  Hindu  undivided
\nfamily, to the income of a company distributed as  dividends
\nto  share-holders,  and\t to the income\tof  a  firm  profits
\nwhereof were assessed in its hands.  The Legislature amended
\ns.  14 of the Act by Act 22 of 1930 and remedied the  defect
\nby  modifying cl. (c) of sub-s. (2) of s. 14 of the Act\t and
\nprovided  that “any sum which he (the assessee) received  as
\nhis  share  of\tthe profits or gains of\t an  association  of
\nindividuals, other than a Hindu undivided family, company or
\nfirm,  where  such profits or gains have  been\tassessed  to
\nincome-tax”,  shall not be subject to tax.  The\t Legislature
\nalso enacted Act 21 of 1930 which made several modifications
\nin  the\t Income-tax Act.  It provided  for  registration  of
\nfirms and added s. 23A which provided:\n<\/p>\n
\t      “(1) Where the Income-tax Officer is satisfied
\n\t      that   any  firm\tor  other   association\t  of
\n\t      individuals  carrying on any  business,  other
\n\t      than a Hindu undivided family or a company, is
\n\t      under  the control of one member thereof,\t and
\n\t      that such firm or association has been  formed
\n\t      or is being used for the purpose of evading or
\n\t      reducing\tthe liability to tax of\t any  member
\n\t      thereof, he may, with the previous approval of
\n\t      the Assistant Commissioner pass an order\tthat
\n\t      the  sum payable as income-tax by the firm  or
\n\t      association  shall  not  be  determined,\t and
\n\t      thereupon\t the  share of each  member  in\t the
\n\t      profits  and gains of the firm or\t association
\n\t      shall be included in his total income for\t the
\n\t      purpose of his assessment thereon.”\n<\/p><\/blockquote>\n
A  similar  provision  with regard  to\tcompanies  was\talso
\nincorporated in sub-s. (2) of s. 23A.  Broadly speaking,  by
\nthe amended provision discretion was given to the Income-tax
\nOfficer\t to  treat as separate entities for the\t purpose  of
\ntaxation the individuals formed any association carrying  on
\nbusiness, of which only one
\n74<\/span>
\nmember\twas competent to bind the association by  his  acts,
\nand  to give to the Income-tax Officer discretion  to  treat
\nthe  members  of a company as separate entities\t in  certain
\nconditions-.   But s. 23A (1) as enacted by Act 21  of\t1930
\napplied only to first and association of individuals if\t the
\nmanagement  was\t in the hands of one person: it did  not  in
\nterms  apply to cases where the management was in the  hands
\nof  more  persons than one, even if it was  formed  for\t the
\npurpose\t of evading or reducing the liability to tax of\t any
\nmember\tthereof.   By Act 7 of 1939  the  expression  “asso-
\nciation\t of  persons” was substituted  for  “association  of
\nindividuals”-,\ts.  23A(1) was deleted; and sub-s.  (5)\t was
\nadded  to  s. 23.  Sub-section (5) of s. 23  prescribed\t the
\nmechanism  for\tbringing  to  tax  the\tincome\tof  a\tfirm
\nregistered or unregistered.  If the firm was registered, the
\nshare  of  each\t partner was to\t be  separately\t taken\tinto
\naccount\t together with his other income and brought to\ttax.
\nIf  it\twas  an unregistered firm, the income  of  the\tfirm
\nitself\twas  brought to tax, unless the\t Income-tax  Officer
\nwits  of  the  opinion that the correct amount\tof  the\t tax
\nincluding  super-tax, if any, payable by the partners  under
\nthe  procedure\tapplicable  to a registered  firm  would  be
\ngreater\t than the aggregate amount payable by the  firm\t and
\nthe  partners  if the firm is assessed\tas  an\tunregistered
\nfirm.\tIn respect of unregistered firms a practical  scheme
\nwhich  aimed  at preventing evasion of tax  was\t devised  by
\nenactment of s. 23(5)(b).\n<\/p>\n
After  the repeal of s. 23A (1) as introduced by Act  21  of
\n1930  no  similar provision conferring discretion  upon\t the
\nIncome-tax  Officer  similar  to  the  discretion  which  is
\nprescribed  by\tthe terms of s. 23(5)(b) in respect  of\t the
\nincome of the unregistered firms was expressly enacted.\t But
\nit  cannot  be\tinferred that it was intended  to  make\t the
\ndiscretion  of the Income-tax Officer qua the assessment  to
\ntax the income of an association of persons in the hands  of
\nindividual  members collectively, arbitrary  or\t unfettered.
\nBy the repeal of s. 23A(1) the essential nature of the power
\nof  an Income-tax Officer was not altered.  He\tremained  as
\nbefore\tunder a duty to administer the Act, for the  benefit
\nof  public  revenue,  but his powers were  to  be  exercised
\njudicially  and so as to avoid double taxation of  the\tsame
\nincome.\n<\/p>\n
This resume of the legislative provisions discloses that the
\nrelevant provisions were made with it view to ensure against
\nevasion\t of tax, while ensuring that the same  income  shall
\nnot be charged more than once.\n<\/p>\n
The  policy and the purpose of the Act may be gathered\tfrom
\nother  operative  provisions  applicable  to  analogous\t  or
\ncomparable  situations”: Jyoti Pershad’s case(1) at p.\t139:
\nand there can
\n(1) [1962] 2 S.C.R. 125.\n<\/p>\n
75<\/span><\/p>\n
be no doubt that an unregistered firm and an association  of
\npersons\t are closely analogous.\t If the income is earned  by
\nan  association of persons, normally a return would be\tmade
\nor  asked  for\tunder s. 22 from the  association,  and\t the
\nincome\tof the association would be brought to tax.  If,  it
\nappears\t to  the  Income-tax  Officer  that  by\t taxing\t the
\nassociation  of persons evasion of tax or escapement of\t tax
\nliability  may result, he is given a discretion to  tax\t the
\nindividual  members: but the discretion is to  be  exercised
\njudicially and not arbitrarily, and its exercise is  capable
\nof rectification by superior authorities exercising judicial
\nfunctions.\n<\/p>\n
It  cannot  therefore be said that there  is,  by  investing
\nauthority   in\t the  Income-tax  Officer  to\tselect\t the
\nassociation of persons or individual members thereof for the
\npurpose\t of assessing to tax the income of the\tassociation,
\ndenial of equality before the law between persons  similarly
\nsituate within the meaning of Art. 14 of the Constitution so
\nas  to\trender\ts. 3 insofar as it confers  power  upon\t the
\nIncome-tax  Officer  to\t select either\tthe  association  of
\npersons\t or  the members thereof for assessment\t to  tax  in
\nrespect of the income of the association void.\tAppeals Nos.
\n1103-1107 of 1966 must therefore fail.\n<\/p>\n
In the group of appeals which arise out of the order  passed
\nby  the High Court in exercise of its advisory\tjurisdiction
\nunder  the  Income-tax Act, counsel for the  assessee  urged
\nthat there was no association in fact; that Chettiappa being
\nat  all\t material  times a minor there could in\t law  be  no
\nassociation of which the income could be brought to tax, and
\nthat  in any event there was no evidence to prove  that\t any
\none on behalf of Chettiappa had assented to the formation of
\nthe association.\n<\/p>\n
The expression “person” is defined in s. 2(9) of the  Indian
\nIncome-tax Act, 1922 as including “a Hindu undivided  family
\nand  a\tlocal authority”.  The definition is  inclusive\t and
\nresort\tmay appropriately be had to the General Clauses\t Act
\nto ascertain the meaning of the expression “person”.  Clause
\n(42)  of s. 3 of the General Clauses Act defines a  “person”
\nas  inclusive  of  any\tcompany,  association  or  body\t  of
\nindividuals whether incorporated or not, and that  inclusive
\ndefinition in the General Clauses Act would also apply under
\nthe  Income-tax Act.  A firm is therefore a “Person”  within
\nthe  meaning  of  the  Income-tax Act, and  a  firm  and  an
\nindividual  or group of individuals may form an\t association
\nof persons within the meaning of s. 3 of the Indian  Income-
\ntax Act.\n<\/p>\n
There  is nothing, in the Act which indicates that  a  minor
\ncannot become a member of an association of persons for the
\npurposes of the Act.  In Commissioner of Income-Tax, Bombay
\nv.   Laxmidas and Anr.(1) it was held that the fact that one
\nof the
\n(1) [1937] I.T.R. 584.\n<\/p>\n
76<\/span><\/p>\n
individuals was a minor did not affect the existence of\t the
\nassociation,  if  in  point  of\t fact,\tthe  assessees\t had
\nassociated   together\tfor  the  purpose   of\t gain.\t  In
\nCommissioner   of  Income-tax,\tBombay\tNorth,\t Kutch\t and
\nSaurashtra v.Indira Balkrishna(1) it was held “that the word
\n“associate”  means……….. to join in common purpose,  or
\nto  join  in  an action’.   Therefore,\tand  association  of
\npersons\t must be one in which two or more persons join in  a
\ncommon purpose or common action, and as the words occur in a
\nsection which imposes a tax on income, the association\tmust
\nbe one the object of which is to produce income, profits  or
\ngains.”\n<\/p>\n
In the case before us, there is abundant material, to  prove
\nthat  Meyyappa\t(1), his minor son Chettiappa  and  M.S.M.M.
\nfirm formed an association in the years 1952-53 to  1956-57.
\nTo  review  the.relevant facts: the “M.M.  Ipoh\t properties”
\nwhich were allotted to Meyyappa (1) at the partition in 1940
\nbecame\t on  the  birth\t of  Chettiappa,  Properties  of   a
\ncoparcenary,  and  it  is  common  ground  that\t  Chettiappa
\nacquired  a share in the income which Meyyappa (1)  received
\nfrom the M.S.M.M. firm: the “M.M. Ipoh properties” were,used
\nin a trading venture and were managed by the M.S.M.M.  firm-
\nthe  selling  agency was common between\t M.S.M.M.  firm\t and
\n“M.M.  Ipoh”:  the stocks and expenditure of the  M.M.\tIpoh
\nfirm  were  not ;separately determined and common  books  of
\naccount were maintained for the management of the M.M.\tIpoh
\nproperties and the M.S.M.M. firm dealings.
\nAlagammal-mother  of  Chettiappa-had executed  the  deed  of
\npartition   dated  April  13,  1950  as\t the   guardian\t  of
\nChettiappa.   By the deed she acknowledged  having  received
\nthe share of Chettiappa in the property.  The Tribunal found
\nthat  the management was entrusted to the M.S.M.M.  firm  on
\nbehalf of “M.M. Ipoh”, and that in entrusting the management
\nAlagammal  must have given her consent.\t In paragraph II  of
\nthe statement of the case, the Tribunal observed:\n<\/p>\n
\t      “The  integrity and management of the  estates
\n\t      have  continued undisturbed  right  throughout
\n\t      the  period,  only  the  holding\tthereof\t  by
\n\t      various  members having changed from  time  to
\n\t      time.  The volition necessary is only all\t too
\n\t      apparent the entrustment of the management  to
\n\t      M.S.M.M. firm for ,a proper management implies
\n\t      a prior agreement to which the guardian of the
\n\t      minor must have given her consent too,”\n<\/p><\/blockquote>\n
These observations relate to the entire period of six  years
\n1951-52 to 1956-57.  In the view of the High Court  division
\nof  the\t status\t of joint Hindu family\ton  April  13,\t1950
\nbetween Meyyappa (1) and.  Chettiappa was brought about\t not
\nas a result of any mutual agreement between the coparceners,
\nbut  by Meyyappa (1 in exercise of his power to do so  under
\nthe  Hindu law, and “solely from the feature that the  share
\nof  minor  son Chhettiappa was not separated  by  metes\t and
\nbounds, a conclusion could
\n(1) [1960] 39 I.T.R. 546.\n<\/p>\n
77<\/span><\/p>\n
not  be “reached that Meyyappa (1) and Chettiappa  continued
\nas members of an association of persons.  The  minor had  no
\nvolition  of  his own to express, and the fact that  at\t the
\npartition the minor was represented for purposes of form and
\nnothing more by his father, cannot be taken to mean that the
\nmother\tas his guardian exercised any volition on behalf  of
\nthe minor.” In the view of    the  High\t Court “to  form  an
\nassociation  of persons no agreement enforceable at law\t was
\nnecessary”:  but that “is not the same thin- as to say\tthat
\nan agreement–express or implied-may be inferred where\tnone
\ncan  possibly  exist.\t      The High\tCourt  rejected\t the
\ncontention  raised on behalf of the Revenue that the  father
\nmust have acted as the guardian of the minor in forming\t the
\nassociation in 1951-52.\t The High Court however held that in
\nthe  year  1952-53 and subsequent years\t an  association  of
\npersons was formed and Meyyappa (1) joined that\t association
\non  behalf  of\thimself and  Chettiappa.   Counsel  for\t the
\nassessee  contends  that  once the High\t Court\treached\t the
\nconclusion that in the year 1951-52 there was no association
\nof  persons, the conclusion that an association\t of  persons
\nexisted in the subsequent years could\tnot  be\t reached  in
\nthe  absence  of positive evidence to show  that  after\t the
\nclose  of  the year 1951-52 an association  of\tpersons\t was
\nactually formed.\n<\/p>\n
We are not called upon in these appeals to consider  whether
\nthe learned Judges of the High Court were right in the\tview
\nwhich  they  have  taken  insofar  as  it  relates  to\t the
\nassessment  year  1951-52.   We\t are  only  called  upon  to
\nconsider whether the conclusion of the Tribunal that in fact
\nan  association of persons existed in the year\t1952-53\t Ind
\nsubsequent years was based on any evidence.  In our judgment
\nthe  facts  proved  clearly  show that\tthere  was  such  an
\nassociation  in the years 1952-53 and the subsequent  years.
\nPursuant  to the three partitions no division by  metes\t and
\nbounds of the shares of the owners was made, only the shares
\nin  the\t income of the owner were entered in  the  books  of
\naccount.  There was common management of the properties, and
\nthere was even a common. selling agency.Alagammal had  acted
\nas  a guardian of Chettiappa in the deed of partition.\t The
\nTribunal  inferred that Alagammal must have assented to\t the
\nformation of the association on behalf of Chettiappa and  in
\nthe  various  transactions relating to\tthe  entrustment  of
\nmanagement.   It  is true that this finding related  to\t the
\nyear 1951-52 as well, and the High Court has disagreed\twith
\nthat finding insofar as it related to the year 1951-52.\t But
\non  that account the finding of the Tribunal in\t respect  of
\nthe  subsequent years cannot be discarded.  The\t Association
\nwhich has earned income in the years 1952-53 and  thereafter
\nis an association different from the association in 1951-52.
\nIn 1951 Chokalingam had demanded a share in the\t “properties
\nof  M.M. lpoh and he was given a half share. The  shares  of
\nMeyyappa (1) and Chettiappa in the properties were
\n78<\/span>
\nreduced, and thereafter ownership in the “properties of M.M.
\nIpoh” and its activities vested in an association formed  by
\nMeyyappa  (1),\tthe  M.S.M.M. firm and\tChettiappa.   It  is
\ncommon ground that “M.M. Ipoh” was a trading venture and its
\nmanagement  was\t entrusted  in the  relevant  years  to\t the
\nM.S.M.M. firm.\n<\/p>\n
The doctrine of res judicata does not apply so as to make  a
\ndecision  on a question of fact or law in a  proceeding\t for
\nassessment  in\tone  year  binding  in\tanother\t year.\t The
\nassessment  and the facts found are conclusive only  in\t the
\nyear of assessment: the findings on questions of fact may be
\ngood and cogent evidence in subsequent years, when the\tsame
\nquestion  falls to be determined in another year,  but\tthey
\nare not binding and conclusive.\t The finding recorded by the
\nHigh Court that in the year 1951-52 there was no association
\nof  persons constituted by Meyyappa (1) and  Chettiappa\t for
\nearning\t income\t from M.M. Ipoh properties will not  in\t the
\npresent case have any effect on the finding of the  Tribunal
\nthat  in  year\t1952-53 and the\t subsequent  years  such  an
\nassociation  existed.  It must again be remembered that\t the
\nassociation  of\t persons  which traded in  1952-53  and\t the
\nsubsequent  years  was\tan association\tdifferent  from\t the
\nassociation  in 1951-52.  After the reduction in the  shares
\nof Meyyappa (1) and Chettiappa in the “M.M. Ipoh properties”
\na fresh arrangement for entrustment of the management of the
\nproperties to the M.S.M.M. firm was necessary and  according
\nto  the\t findings  of the Tribunal,  Alagammal\tassented  on
\nbehalf of Chettiappa to that arrangement.
\nCounsel\t for  assessee contended that for the  finding\tthat
\nAlagammal  assented  on\t behalf of  Chettiappa\tto  form  an
\nassociation was not supported by any evidence on the record.
\nBut  from  readjustment\t of the shares\tin  the\t “M.M.\tIpoh
\nproperties”,  admission\t of Chettiappa to  the\tbenefits  of
\nM.S.M.M.  firm and the management of “M.M. Ipoh\t properties”
\nto  continuing\tF to remain with the M.S.M.M. firm,  with  a
\ncommon\tselling\t agency, and the execution of  the  deed  of
\npartition  by  Alagammal, an inference could  reasonably  be
\nmade  that  a  person  purporting  to  act  as\tguardian  of
\nChettiappa concurred in forming the association and that the
\nperson so concurring was Alagammal.  The finding recorded by
\nthe  Tribunal  is one of fact, and was not liable  a  to  be
\nquestioned  before the High Court.  It is also pertinent  to
\nnote  that  the finding that Alagammal acted  on  behalf  of
\nChettiappa in forming the association for the years  1952-53
\nwas  never  challenged\tand was not sought to  be  made\t the
\nsubject\t of  a question in an application  to  the  Tribunal
\nunder  s. 66(1) and no question in that behalf was  referred
\nto  the High Court.  It is true that  the High Court was  of
\nthe  view that in the years 1952-53 to 1956-57 Meyyappa\t (1)
\nacted  on behalf of Chettiappa in forming  the\tassociation.
\nBut the High Court in a reference under s. 66 of the Income-
\ntax Act was incompetent to disturb what was
\n79<\/span>
\nessentially  a finding of fact recorded by the Tribunal\t and
\narrive at another finding.\n<\/p>\n
On  the other question which has been answered by  the\tHigh
\nCourt  the  Tribunal declined to submit a statement  of\t the
\ncase,  because in their view it did not arise out  of  their
\norder.\t They pointed out that a ground in  support  thereof
\nwas  taken  in the memorandum of appeal, but as it  was\t not
\npressed\t before the Appellate Assistant\t Commissioner.\tthey
\ndid  not  deal with it.\t The High Court\t observed  that\t the
\nTribunal was bound to deal with the question irrespective of
\nwhether\t it  was  agitated before  the\tAppellate  Assistant
\nCommissioner.\tEven assuming that the second  question\t was
\nproperly  raised in the form and in the manner in  which  it
\nwas  raised  by the High Court, the answer to  the  question
\nmust, on the facts found, be against the assessee.   Counsel
\nfor  the assessee contended that there were no materials  on
\nwhich  the  Tribunal could hold that Meyyappa  (1)  was\t the
\nprincipal  officer of “M.M. Ipoh”, and since the  Income-tax
\nOfficer\t had  made  no enquiry\tbefore\tissuing\t the  notice
\ntreating  Meyyappa  (1) was the principal officer  of  “M.M.
\nIpoh”, Meyyappa (1) could not be so treated for the  purpose
\nof  the\t proceedings for assessment.  Under  s.\t 22(2),\t the
\nIncome-tax  Officer may, if in his opinion the income  of  a
\nperson\tis  liable to income-tax, serve a  notice  upon\t him
\nrequiring  him to furnish a return in the  prescribed  form.
\nThe  notice under s. 34 for re-assessment must also  contain
\nall  or any of the requirements which may be included  in  a
\nnotice\tunder  sub-S. (2) of S. 22.  Such a  notice  may  be
\nserved\tunder  s.  63(2)  of the  Income-tax  Act  upon\t the
\nprincipal  officer of an association of persons.  Under\t the
\ndefinition  in s. 2(12) a “Principal officer”omitting  parts
\nnot  material-“used with reference to…..  any\t association
\nmeans-(a)  .  .\t .  . (b)  any\tperson\tconnected  with\t the
\nauthority,  company,  body,  or association  upon  whom\t the
\nIncometax  Officer has served a notice of his  intention  of
\ntreating  him  as  the\tprincipal  officer  thereof;”.\t The
\nIncome-tax  Officer  Karaikudi assessed the income  of\t“the
\nassociation  M.M.  Ipoh by its\tprincipal  officer  M.S.M.M.
\nMeyyappa  Chettiyar”.  No objection was ever  raised  before
\nthe   Income-tax  Officer  about  the  regularity   of\t the
\nproceedings  and the Income-tax Officer found that  Meyyappa
\n(1)  was  the principal officer of  the\t association.\tEven
\nbefore\tthe  Appellate\tAssistant Commissioner\tit  was\t not
\nargued that Meyyappa (1) was not the principal officer.\t For
\nthe  first time that ground was taken before  the  Tribunal.
\nThe  notices served on Meyyappa (1) are not printed  in\t the
\nrecord\tprepared  for use in this Court.  In the  orders  of
\nassessment for the year 1952-53 and the subsequent years  it
\nis recorded that action was taken to bring to tax the income
\nof “M.M. Ipoh”, and in response to the notices the principal
\nofficer\t Meyyappa  (1)\thad  filed  returns.   The  assessee
\nsubmitted an application under s. 66(2) during the course of
\nthe  hearing before the High Court of the question  referred
\nby the
\n80<\/span>
\nTribunal.   The\t High  Court granted  that  application\t and
\nwithout\t calling for a formal statement of the case  on\t the
\n‘question sought to be raised, heard the parties.  It may be
\nreasonably  assumed that the assessee was prepared to  argue
\nthe case on the footing that the statements in the orders of
\nthe  Income-tax Officer were correct.  In the  circumstances
\nit  must  be held that the Income-tax Officer did,  serve  a
\nnotice of his intention to treat a person connected with the
\nassociation  as the principal officer thereof.\tThe  Income-
\ntax Officer assessed the income of the association as repre-
\nented  by Meyyappa (1) its principal officer.  There is,  in
\nour  judgment,\tnothing\t in  the  Act  which  supports\t the
\ncontention   of\t counsel  for  the  assessee   that   before
\nproceedings   in   assessment  can   commence\tagainst\t  an
\nassociation  of persons a notice must in the first  instance
\nbe  issued and an order passed after giving  opportunity  to
\nthe  person proposed to be treated as the principal  officer
\nopportunity  to show cause why he should not be so  treated.
\nIt is open to the Income-tax Officer to serve a notice on  a
\nperson\twho  it is intended to be treated as  the  principal
\nofficer.  The person so served may object that he is not the
\nprincipal  officer or that the association is  not  properly
\nformed.\t  The Income-tax Officer will then consider  whether
\nthe  person served is the principal officer and\t whether  he
\nhas some connection or concern with the income sought to  be
\nassessed.   There  is  in the Income-tax  Act  an  analogous
\nprovision  in s. 43 of the Act which authorises the  Income-
\ntax  Officer to treat a person as a statutory agent  of\t the
\nnon-resident  for the purpose of assessing him to  tax,\t the
\nincome\treceived  by the non-resident.\tIt was held  by\t the
\nJudicial  Committee in Commissioner of Income-tax, Punjab  &
\nN.W.F.P.  v.  Nawal Kishore Kharaiti Lai<\/a>(1) that it  is\t not
\nnecessary for the validity of a notice calling for a  return
\nof the income under S. 23(2) served on a person as agent  of
\na  non-resident\t under\tS.  43, that  it  should  have\tbeen
\npreceded not only by the notice of intimation prescribed  by
\ns. 43, but also by an order declaring the person to be agent
\nof the non-resident or treating him as such.  The Income-tax
\nOfficer may postpone any final determination of the  dispute
\nuntil  the time comes to make an assessment under S.  23  of
\nthe  Act.  In our judgment, the same principle applies to  a
\ncase  in  which\t in  the assessment  of\t the  income  of  an
\nassociation  of\t persons  or person is to be  treated  as  a
\nprincipal  officer  of\tthat  association.   If\t the  person
\ndescribed  as a principal officer of an association is\tduly
\nserved with a notice under S. 23(2) in the manner prescribed
\nby s. 63(2), an adjudication of his status as the  principal
\nofficer before assessment proceedings may take place is\t not
\nobligatory.  The order assessing the association  containing
\na finding that the person served is the principal officer is
\nsufficient compliance with the requirements of the  statute.
\nIt  is open to the association to challenge the\t finding  of
\nthe Income-tax Officer
\n81<\/span>
\nin appeal before the Appellate Assistant Commissioner and in
\nfurther\t appeal\t to the Appellate Tribunal.  But  the  order
\ndeclaring him as the principal officer of an association  of
\npersons\t will  not be deemed to be void merely\tbecause\t the
\nproceeding for assessment was not preceded by a\t declaration
\nof  the\t status\t of  the person\t treated  as  the  principal
\nofficer.\n<\/p>\n
The  appeals Nos. 1060-1964 of 1965 must also fail  and\t are
\ndismissed  with\t costs.\t There will be one  hearing  fee  in
\nappeals\t Nos.  1103-1107  of 1966 and  one  hearing  fee  in
\nappeals Nos. 1060-1064 of 1965.\n<\/p>\n
R.K.P.S.\n<\/p>\n
Appeals dismissed.\n<\/p>\n
82<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. M. Ipoh & Ors vs Commissioner Of Income-Tax, … on 26 July, 1967 Equivalent citations: 1968 AIR 317, 1968 SCR (1) 65 Author: S C. Bench: Shah, J.C. 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. […]<\/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-90055","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. M. 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