J.S. Verma, C.J. - (1.) THIS is a joint reference at the instance of the assessee as well as of the Revenue for answering certain questions of law said to arise out of the Tribunal's order. The questions of law referred at the instance of the assessee are the following, namely : " 1. Whether, on the facts and circumstances of the case, the Tribunal was justified in finding it proved that the business in the name of Subhash Medical Stores, Bhilwara, really belongs to Shri Ramesh Chandra Mundra and the income from the said business was assessable in his individual capacity ?
(2.) WHETHER the Tribunal after its finding that the business of Subhash Medical Stores belongs to Shri Ramesh Chandra Mundra was justified in treating the contention of the assessee meaningless that the assessee should have been given an opportunity by the Income-tax Officer to file Form No. 11 ? Whether the learned Tribunal was correct in law in sustaining accordance of status of unregistered firm to the appellant ? " 2. The question of law referred at the instance of the Revenue is the following, namely : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that an appeal would lie against the order of the Income-tax Officer charging interest under Sections 139 and 217 of the Income-tax Act, 1961, and in setting aside the order of the Appellate Assistant Commissioner, for him to decide this point on merits ?" 3. The material facts are these: The relevant assessment year is 1964-65, The assessee, Subhash Medical Stores, Bhilwara, claims to be a partnership firm and, on that basis, had applied for assessment in the status of a firm for the assessment year 1964-65 as well as the earlier assessment years 1961-62 and 1962-63 as well. In respect of the earlier assessment years, the assessing authority held that. Subhash Medical Stores, Bhilwara, was a proprietary concern of Ramesh Chandra Mundra and, therefore, it was assessed in the status of an individual denying it the status of a firm. This view was upheld by the Tribunal. A reference to this court arising out of the earlier assessment years was decided in the case of Subhash Medical Stores v. CIT [1984] 147 ITR 486 (Raj), wherein it was held that refusal of the registration as a firm to the assessee, Subhash Medical Stores, was unjustified and that the Tribunal was not justified in assessing Ramesh Chandra Mundra as an individual. For the relevant assessment year 1964-65 with which we are concerned in this reference, the assessing officer and thereafter the authorities up to the Tribunal have merely followed its earlier view and refused registration to the assessee as a firm treating the same to be a sole proprietary concern of Ramesh Chandra Mundra, who has been assessed as an individual. It has been held that the material present for this assessment year as well is identical and there being no other material to take a different view, the conclusion reached for the earlier assessment years must be followed even for the assessment year 1964-65. It may be mentioned that in the assessee's appeal challenging the status in which the assessment was made as well as its tax liability and the quantum, grievance was also made against the interest which had been levied. The Tribunal has held that the appeal is competent for challenging the levy of interest, rejecting the Revenue's contention that the appeal was not maintainable in so far as it related to the interest. The assessee is aggrieved by the Tribunal's decision relating to the status in which the assessment has been made and the ancillary questions decided on this basis while the Revenue was aggrieved by the rejection of its contention that the appeal was not competent to challenge the levy of interest. It is for this reason that both sides applied for a reference under Section 256(1) of the Act to the Tribunal for referring the aforesaid questions of law for the decision of this court. This is how the above questions of law arise for decision by us. The three questions referred at the instance of the assessee involve for decision, in substance, only one point relating to the status in which the assessee has to be assessed. The point is whether the Tribunal was justified in rejecting the assessee's claim for registration and assessment as a firm and not as an individual. It is common ground that the material on which the present case is to be decided is the same or, in other words, identical to that on which the decision for the earlier years was given in Subhash Medical Stores v. CIT [1984] 147 ITR 486 (Raj). It was expressly held by the Division Bench deciding that case relating to the earlier assessment years that the contents of the partnership deed clearly disclose that the partners had taken over the business and Ramesh Chandra Mundra was looking after the said business not in his own right but in the capacity of an employee and by virtue of the authority given by the partners who had the right to take policy decisions. It was further held that there was no satisfactory material before the Tribunal to come to the conclusion that the partnership firm constituted by the deed was not genuine. Accordingly, it was held that the Tribunal was not justified in refusing registration to the assessee-firm and in making the assessment in the status of an individual treating the concern to be the sole proprietary concern of Ramesh Chandra Mundra. As earlier indicated, the facts of the present case are identical and so is the material on which the same point is to be decided by us for the relevant assessment year 1964-65. Following the earlier decision in Subhash Medical Stores' case [1984 147 ITR 486 (Raj), we must, therefore, take the same view.
(3.) THE only point surviving for our decision is the one relating to the interest covered by the question referred at the instance of the Revenue. Admittedly, the present is a case in which the appeal was filed not merely against interest alone but on several matters including the status in which the assessment was to be made, and the tax liability as well as the quantum. THE levy of interest was a matter consequential to the decision of the main puints raised in appeal relating to the status and quantum. In such a situation, there is no basis to hold that the appeal was incompetent in part only in so far as it assailed the levy of interest as well. It is obvious that the question of interest would arise subsequent to the decision of the main points in appeal in respect of which consequential direction has naturally to be given. We may refer to the earlier decisions of this court in CIT v. Devichand Pan Mal [1986] 160 ITR 545 and CIT v. Associated Stone Industries (Kotah) Ltd. [1981] 130 ITR 868, taking the same view. Consequently, the questions referred are answered as follows : At the instance of the assessee : (1) The Tribunal was not justified in refusing registration to the assessee-firm and in making the assessment treating Ramesh Chandra Mundra as the sole proprietor of Subhash Medical Stores, Bhilwara, in his individual capacity. (2) and (3) These questions do not arise for decision in view of our answer to the above question No. (1). At the instance of the Revenue : The Tribunal was justified in holding that the appeal would lie even on the question of interest in the present case. No order as to costs. ;