DEEPCHAND KOTHARI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE applicant has filed these applications under Section 256(2) of the I.T. Act, 1961 (hereinafter called "the Act"), against the order of the Income-tax Appellate Tribunal, Jaipur Bench, at Jaipur (hereinafter called the "Appellate Tribunal"), dated December 29, 1973, passed in Income-tax Appeals Nos. 659 to 666 and in Reference Applications Nos. 113 to 120/JP/73-74 dated December 30, 1974, refusing to state the case and refer the questions of law to this court.

(2.) THE applicant, Shri Deepchand Kothari, was being assessed at Beawar in the status of an individual in respect of property income and 25 per cent. share from the registered firm, M/s. Jhabarchand Gokalchand, Beawar. He was assessed in the status of HUF in respect of income from house property, shared profit from M/s. Kundanmal Jhabarchand, Umed, and self-business at Jodhpur. Notices under Section 147(a) of the Act were issued by the ITO, C-Ward, Jodhpur, with prior approval of the Commissioner with a view to club the income arising to the assessee from the source at Beawar treating the income as income of the HUF at Jodhpur. THE assessee filed returns of income, under protest, in the status of HUF. During the assessment proceedings, the assessee objected to the proceedings started under Section 147(a) of the Act on the ground that the same were void as there was no concealment of the income on the part of the assessee and contended that the income at Beawar was being assessed in the status of an individual and that at Jodhpur in the status of HUF and it should be continued to be so assessed. THE ITO, however, overruled the objection and clubbed the income at Beawar with the income at Jodhpur earned in the status of HUF. THE applicant preferred an appeal to the AAC. THE AAC by his order dated August 17, 1972, while allowing the appeals of the applicant, caine 1o the conclusion that the status of the assessee for income at Beawar has to be taken as an individual and for that at Jodhpur as an HUF. As such, income of Beawar should be excluded from the income of the assessee assessed at Jodhpur. It may be mentioned here that the applicant in his appeal before the AAC also raised the objection regarding the validity of the proceedings under Section 147(a), but in view of the appeal being allowed on merits the AAC perhaps did not consider it necessary to decide this point. THE department preferred appeals to the Income-tax Appellate Tribunal, Jaipur Bench, against the order of the AAC. THE Income-tax Appellate Tribunal by its order dated December 29, 1973, allowed the appeals of the department and the order of the AAC was set aside and the order of the ITO was restored for all the years under consideration.

(3.) AS regards questions Nos. 4 to 7, they pertain to the status as to whether the income of the assessee was to be assessed as his individual income or the income of the HUF. The Tribunal refused to refer the above questions on the grounds, (i) that they stand concluded by the findings of fact found by the Tribunal; and (ii) if any question of law arises, the same stood settled by the Supreme Court and, as such, it would be only academic to refer them.