COMMISSIONER OF INCOME TAX Vs. LEKSHMIKUTTY AMMA T

JUDGEMENT

(1.) TWO questions are raised in these petitions under Section 256(2) of the Income-tax Act, 1961, which relate to the assessment years 1980-81, 1981-82 and 1983-84. One of the questions raised is relating to the assessability of the assessee in the status of a Hindu undivided family. The Tribunal held based on the decision of this court in WTO v. K. Madhavan Nambiar [1988] 169 ITR 810 that having regard to the provisions of the Kerala Joint Hindu Family System (Abolition) Act, the assessee was not liable to be assessed in the status of a Hindu undivided family. The Tribunal declined to refer the question of law arising out of this finding because the matter stood concluded by the decision of this court in WTO v. K. Madhavan Nambiar [1988] 169 ITR 810. The application filed by the Revenue to compel reference of this question under Section 256(2) of the Income-tax Act, 1961, relating to another year, namely, Original Petition No. 16493 of 1992 was dismissed by us on the ground that the matter stood covered by the aforesaid decision and that no purpose will be served by directing reference of this question. One of the questions raised in all these three petitions before us relates to the assessability or otherwise of the assessee in the status of a Hindu undivided family.

(2.) THE assessments involved in these cases are all assessments reopened under Section 147(b) of the Act. THE original assessments had been completed otherwise than in the status of a Hindu undivided family based on the decision of this court in K. Madhavan Nambiar v. WTO [1982] 134 ITR 695. Subsequently and in view of another decision rendered by another learned single judge of this court in Sankaranarayanan Bhattathiripad v. ITO [1985] 153 ITR 562, the Income-tax Officer purported to reopen the assessment under Section 147(b) to hold that the assessee was liable to be assessed as a Hindu undivided family. THE Commissioner (Appeals) held that the reopening was bad in law. He also held that the contention of the assessee not to be treated as a Hindu undivided family for purposes of assessment was sustainable. He set aside the reopened assessments accordingly. On appeal by the Income-tax Officer, the Tribunal confirmed this decision of the Commissioner (Appeals) holding that the proceedings initiated under Section 147(b) were without jurisdiction and also that the assessee was not liable to be assessed in the status of a Hindu undivided family. THE Revenue has sought reference of the two questions, one relating to the reopening and the other relating to the status of the assessee to be referred to this court for determination, after their applications for reference were dismissed by the Tribunal. Counsel for the Revenue submits that, though the question relating to the status was refused to be referred by us in Original Petition No. 16493 of 1992, still that question also ought to be referred, as according to him the finding of the Tribunal on the question of reopening under Section 147(b) is unsustainable in law. He refers to the decision of the Calcutta High Court in CIT v. Assam Oil Co. Ltd. [1982] 133 ITR 204, to contend that a reopening does not cease to be valid merely because the decision on which the reopening was done was subsequently reversed by a superior court, According to him, therefore, both the questions required should be referred to this court for determination, even though the question relating to status stands held against the Revenue by the decisions of this court.