RAVISHANKAR TAPA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference at the instance of the assessee, on a direction given by this Court, under section 256 (2) of the Income-tax Act, 1961, to answer the following question of law, namely :

(2.) THE material facts are these. The assessee is a medical practitioner. During the assessment year 1967-68, he was also a partner in a firm styled as M/s Motilal dhannilal Tapa, Mandla. The original assessment for this assessment year of the assessee was completed on 7-3-1968 on an income of Rs. 12,770/- out of which rs. 1,500/- was his professional income. Thereafter, the Income-tax Officer re-opened the proceedings under section 147 (a) of the Act on the basis of information received by him by issuing a notice under section 148 of the Act. As a result of the reassessment made by the Income-tax Officer, the assessee's total income was raised to Rs. 22,160/-, out of which his professional income was assessed at Rs. 10,000/ -. In the assessee's appeal to the Assistant Appellate Commissioner, the assessee contended that he had wrongly included the share income obtained as a partner of the firm M/s. Motilal dhannilal Tapa, Mandla, in his return as his income of an individual; and that it should have been excluded from the assessment on account of the fact that on his marriage in may 1965, this income became the investment in the firm of the joint family consisting of himself and his wife. The Appellate Assistant Commissioner rejected the appeal. On further appeal, the Tribunal has upheld the conclusion reached by the Appellate assistant Commissioner. The Tribunal has held that this matter not having been agitated by the assessee during the proceedings for original assessment, the same could not be agitated at the time of reassessment under section 147 (a) of the Act.

(3.) AGGRIEVED by the above view taken by the Tribunal, the assessee applied for a reference under section 256 (1) of the Act and the same having been refused by the tribunal, an application was made under section 256 (2) of the Act to this Court and it is a result of the direction of this court in Misc. Civil Case No. 662 of 1977 decided on 4-4-1980, that the Tribunal stated the case and referred the above question of law, arising out of the Tribunal's order.