COMMISSIONER OF INCOME TAX Vs. LAL CHAND

JUDGEMENT

(1.) THE Income-tax Appellate Tribunal has referred the following question of law arising out of its order dated August 25, 1980, for the assessment years 1976-77 and 1977-78 :

(2.) THE brief facts of the case are that the assesses submitted a return of income in the status of an individual for the first time in respect of the period ending Diwali, 1975, i.e., for the assessment years 1976-77 and 1977-78. Till the assessment year 1975-76, the assessee was assessed in the status of a Hindu undivided family ("HUF") and the partition has taken place on the last date of the relevant accounting year. THE assessment was completed in the status of an individual.

(3.) WE have considered the matter. The provisions of Section 212(3) cast an obligation on a person who has not previously been assessed by way of regular assessment under this Act or under the Indian Income-tax Act, 1922, to submit an estimate of the current income calculated in the manner laid down in Section 209. Though the factual position which was considered by the Income-tax Officer was not correct, it was for this reason alone that subsequently the 'Income-tax Officer deleted the penalty under Section 273(b) which provides for penalty on account of failure to submit a statement of the advance tax payable in accordance with the provisions of Section 209A(1). The Appellate Assistant Commissioner, on the basis of the order passed by the Income-tax Officer not levying the penalty, accepted the appeal. The provisions of Sub-section (3) of Section 212 were omitted by the Finance Act, 1978, with effect from June 1, 1978. The only requirement which has to be seen from the provisions of Sub-section (3) of Section 212 is whether the person was previously assessed by way of regular assessment under this Act or not. It is not denied that the assessments up to 1970-71 were made in the status of an individual By no stretch of imagination, can those assessments now be considered as those of the Hindu undivided family simply because, for the subsequent period, the assessments were made in the status of a Hindu undivided family. The word "previously assessed" would cover a case where an assessee has been assessed "for any previous year" under the Income-tax Act and simply because, in those assessment orders, the status as alleged has wrongly been mentioned as individual, it could not be contended that the assessment of the assessee in individual capacity was not made earlier or that he could be considered to be a person who has not been previously assessed by way of regular assessment.