COMMISSIONER OF INCOME TAX Vs. S V M AHMED JALALUDEEN

JUDGEMENT

(1.) THE four assessees in this case were partners in a firm called S. V. M. Mohammed Jamaludeen and Brothers, Ceylon. But the partners were residing at Kilakarai in Ramanad District. On 12th December, 1946 a company in the name and style of S. V. M. Mohammed Jamaludeen and Brothers (Ceylon) Limited, was incorporated and this company took over the assets and liabilities of the firm as on 19th January, 1947. THE assessee were allotted shares in that company in proportion to their interest in the partnership. THE assessee were in receipt of salary and dividends from the company. For the asst. yrs. 1947-48 to 1953-54 the assessee submitted their returns as individuals disclosing the receipt of salary and dividends from the company.

(2.) BUT the ITO did not accept the changed state of affairs and invoking the provisions of s. 44-D of the Indian INCOME TAX Act, 1922 deemed the partnership to have continued in existence. In this iew, the assessment was made on the firm as if itt had continued to exist for the asst. yrs. 1947-48 to 1953-54. There were appeals by the firm. The Tribunal took the view that view that s. 44-D was not applicable by its order dt. 9th September, 1957 reversing the order of the AAC, who had confirmed the order of assessment. At the instance of the Revenue reference in T.C. No. 38 of 1958 was made to this Court on the question of applicability of s. 44-D. When this reference was pending, the assessments for the asst. yr. 1960-61 were completed by the ITO by his order dt. 30th December, 1960. In this order the ITO proceeded on the basis that s. 44-D was not applicable was upheld by this Court, by Judgment dt. 26th September, 1961. The ITO was then informed in the year 1962 by the CIT that no further appeal would be filed to the Supreme Court against the decision of the High Court and that the judgment of the High Court had been accepted. Consequent on the decision that s. 44-D had no application the ITO felt that there was no share income to be adopted as arising out of the firm and that the amount of salary, bonus and dividends as returned by the assessee required to be assessed. He accordingly issued a notice under s. 148 proposing to revise the assessment under s. 147(b). The assessee filed returns as required under the notice and in section D of the return the amounts received as salary, bonus and dividend were shown. The assessments were completed including these amounts received as salary, bonus and dividends in the income chargeable to tax. The assessee filed an appeal to the AAC contending that the action of the ITO was without jurisdiction that by the time the original assessment was made on 30th December, 1960 the Tribunal had held that s. 44-D was not applicable and therefore that information was available to him and there was no fresh information that came to the possession of the ITO subsequent to his order dt. 30th December, 1960. The AAC held that the High Court's order dt. 26th September, 1961 confirming the Tribunal's view that s. 44-D is not applicable and the information of the CIT that the Department is not filing any appeal against the order of the High Court and that it had accepted the judgment, constituted an information within s. 147(b) and that therefore the ITO was within his jurisdiction in proposing to revise the assessment. BUT the Tribunal took the view that even at the time when the original assessment order was made the Tribunal had expressed the view that s. 44-D was not applicable in its order dt. 9th March, 1957 and therefore there was no fresh information subsequent to the assessment order when the High Court confirmed the view of the Tribunal. At the instance of the Revenue the following common question has been referred with reference to the assessment on each one of these partners.