- Bookmark
- Share
- CaseIQ
Laxmichand Hirjibhai v. Commissioner Of Income-Tax, Gujarat-Iii
Structured Summary of the Opinion
Factual and Procedural Background
The reference arises from assessment proceedings for the assessment year 1968-69 (previous year Samvat 2023). The assessee is a partnership firm with four equal partners: Laxmichand Hirjibhai, Amratlal Mavjibhai, Ratilal Mavjibhai and Ramjibhai Mavjibhai. Up to assessment year 1967-68 the firm had been assessed as a registered firm. For 1968-69 the firm filed Form No. 12 under s.184(7) of the Income-tax Act, 1961 to renew registration. The Form was signed by three partners but not by Ramjibhai, and due to partner disputes Ramjibhai did not sign despite opportunities given by the ITO. The ITO declined registration and assessed the firm as an unregistered firm.
The firm appealed to the AAC who noted that the assessment of the firm was completed on 30 March 1973 as an unregistered firm, whereas the assessment of the partner Ramjibhai had been completed earlier on 30 March 1972. The assessee relied on the Supreme Court decision in CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [1966] 60 ITR 95 to argue that once the ITO assessed a partner directly he could not subsequently assess the same income in the hands of the unregistered firm. The AAC accepted this contention and also relied on a CBDT circular dated 24 August 1966, holding that the circular supported application of the Murlidhar Jhawar principle under the 1961 Act.
The revenue appealed to the Income-tax Appellate Tribunal (the Tribunal). The Tribunal held that differences in language between provisions of the 1922 Act (s.3) and the 1961 Act (s.4 read with s.2(31)) meant the Murlidhar Jhawar decision (rendered under the 1922 Act) and the Board's circular would not apply to the 1961 Act. The Tribunal also held that the 24 August 1966 circular merely stated a legal position and was not a binding direction under s.119 of the 1961 Act. The Tribunal allowed the appeal, set aside the AAC's order, and remitted the matter to the AAC to decide other grounds in accordance with law.
At the instance of the assessee two questions were referred to the Court for opinion: (1) whether the Tribunal was right in law in holding that even after assessing the partner the firm could be taxed as unregistered under the I.T. Act, 1961; and (2) whether the Tribunal was right in holding that the circular was not binding on the ITO and therefore the assessee was not entitled to its benefit.
Legal Issues Presented
- Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that even after assessing the partner of the firm, the firm could be taxed as unregistered firm under the Income-tax Act, 1961?
- Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the circular was not binding on the Income-tax Officer, and, therefore, the assessee was not entitled to the benefit thereof?
Arguments of the Parties
Assessee's Arguments
- The assessee relied on the Supreme Court decision in CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [1966] 60 ITR 95, asserting that once the ITO assessed a partner's share directly, it was not open to him to assess that same income again in the hands of the unregistered firm.
- The AAC had accepted this contention and further relied upon the CBDT circular dated 24 August 1966 which, according to the assessee and AAC, applied the Murlidhar Jhawar principle to assessments under the Income-tax Act, 1961.
Revenue's Arguments
- The revenue, before the Tribunal, argued that because of differences in language between s.3 of the 1922 Act and s.4 read with s.2(31) of the 1961 Act, the Murlidhar Jhawar decision (which was under the 1922 Act) and the Board's circular would not apply in the context of the 1961 Act.
- The Tribunal accepted the revenue's position and further held that the Board's circular of 24 August 1966 merely stated the legal position and did not amount to binding directions under s.119 of the 1961 Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [1966] 60 ITR 95 (SC) | The principle that the same income cannot be taxed twice — where the ITO assessed partners individually on their shares, he could not thereafter assess the same income again in the hands of the unregistered firm. | The Court treated this decision as establishing the prohibition on double taxation of the same income and as the foundation for the CBDT circular; it applied the principle to hold in favour of the assessee that the firm could not be taxed after a partner had been assessed. |
| State of Uttar Pradesh v. Raza Buland Sugar Co. Ltd. [1979] 118 ITR 50 (SC) | Reaffirmation of the tax principle that income is subject to tax in the hands of the same person only once; trust and association income cannot be taxed again in the hands of members/beneficiaries except where statute permits. | The Court relied on this decision to conclude that the CBDT circular must be followed and that the Tribunal's contrary approach was no longer tenable; Raza Buland was treated as authoritative on the single-tax principle under tax statutes. |
| Ellerman Lines Ltd. v. CIT [1971] 82 ITR 913 (SC) | Establishes that benevolent CBDT circulars that assist assessees are to be followed by assessing officers even if they deviate from strict legal position. | The Court invoked Ellerman Lines to support the proposition that the Board's circular of 24 August 1966 would be binding on officers and should be followed. |
| Shri Rajan Ramkrishna v. CWT [1981] 127 ITR 1 (Guj) | The decision was cited as a case where the effect of the CBDT circular had been considered along with other Supreme Court decisions on circulars and their binding force. | The Court referenced this decision as part of a body of authority considering the effect of the CBDT circular in relation to Supreme Court precedent, contributing to its conclusion on the circular's binding nature. |
| Navnit Lal C. Zaveri v. K. K. Sen (referenced) | This decision was listed among authorities considered concerning the effect of CBDT circulars. | The opinion records that this decision was considered (along with others) when assessing the force of the Board's circular; specific application limited to being part of the authorities reviewed. |
| AAC [1965] 56 ITR 198 (referenced) | Listed among decisions examined in determining the effect of the CBDT circular. | Considered by the Court as part of the jurisprudence on reliance upon CBDT circulars; the opinion cites it without expanding an independent principle from it. |
Court's Reasoning and Analysis
The Court conducted a layered analysis:
- It first set out the factual timing: the partner Ramjibhai's assessment was completed on 30 March 1972 while the firm's assessment as an unregistered firm was completed on 30 March 1973. The factual sequence mirrors the Murlidhar Jhawar case facts where partners had been assessed individually and later the firm was assessed.
- The Court reviewed the Murlidhar Jhawar decision and summarized its holding: the same income cannot be taxed twice; once partners (or a partner) are assessed individually on their share of firm/association income, the unregistered firm/association cannot be taxed again in respect of that same income.
- The Court then turned to the CBDT circular dated 24 August 1966 which explicitly applied the Murlidhar Jhawar principle to assessments under the Income-tax Act, 1961 and provided procedural directions to ITOs (including priorities and possible interim orders on registration) to avoid the double-assessment problem.
- The Tribunal's reasoning — that differences in language between the 1922 and 1961 Acts meant the Murlidhar Jhawar decision and the circular did not apply, and that the circular was not binding under s.119 — was examined. The Court analysed s.119(1) which empowers the Board to issue orders, instructions and directions to income-tax authorities and mandates observance of such directions by those employed in execution of the Act. The Court reproduced the provision's text and emphasized its binding character.
- The Court considered jurisprudence on the effect of CBDT circulars, notably Ellerman Lines (which held benevolent circulars should be followed even if deviating from legal position) and decisions including Navnit Lal, AAC, and Shri Rajan Ramkrishna which had considered the effect of the Board's circulars. The Court treated these authorities as supporting the principle that the Board's circulars bind subordinate income-tax authorities.
- The Court invoked the later Supreme Court decision in State of Uttar Pradesh v. Raza Buland Sugar Co. Ltd. [1979] 118 ITR 50, which reaffirmed that income should be taxed only once in the hands of the same person unless statute provides otherwise. The Court regarded this authority as reinforcing the Murlidhar Jhawar principle and as eliminating the Tribunal's earlier available argument regarding differences between the 1922 and 1961 Acts.
- Drawing these strands together, the Court concluded that (a) the Board's circular of 24 August 1966 is binding on income-tax authorities under s.119(1) of the 1961 Act, (b) the single-tax principle prevents taxing the same income twice, and (c) the Tribunal's reliance on textual differences between the 1922 and 1961 Acts was rendered untenable in light of the subsequent Supreme Court authority (Raza Buland) and the binding character of the Board's circular.
- The Court therefore answered the referred questions in favour of the assessee: the firm could not be taxed as an unregistered firm after a partner had been assessed, and the circular was binding and its benefits were available to the assessee.
Holding and Implications
Holding: The Court answered both referred questions in the negative (i.e., in favour of the assessee and against the revenue).
Specifically:
- DISPOSITION: The firm could not be taxed as an unregistered firm in respect of income that had already been assessed in the hands of a partner.
- CIRCULAR: The CBDT circular dated 24 August 1966 is binding on income-tax officers under s.119(1) of the Income-tax Act, 1961, and the assessee was entitled to the benefit of that circular.
- COSTS: The Commissioner was ordered to pay the costs of the reference to the assessee.
Implications: As articulated in the opinion, the decision applies existing Supreme Court authorities (notably Murlidhar Jhawar and Raza Buland Sugar Co.'s case) and gives effect to the Board's procedural directions in the 24 August 1966 circular. The direct consequence is relief to the assessee in the instant assessments (the firm cannot be taxed on the same income after a partner has been assessed and the circular must be followed). The opinion rests on application of existing precedent and the binding nature of the Board's directions under s.119(1); the Court did not state that it was laying down a novel legal principle beyond applying and clarifying the effect of existing authorities and the Board's circular.
Note: This summary reflects only the information and reasoning contained in the provided opinion. No facts or legal propositions beyond the text of the opinion have been added or inferred.
1. In this case, at the instance of the assessee, the following two questions have been referred to us for our opinion :
"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that even after assessing the partner of the firm, the firm could be taxed as unregistered firm under the Income-tax Act, 1961 ?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the circular was not binding on the Income-tax Officer, and, therefore, the assessee was not entitled to the benefit thereof ?"
The facts leading to this reference are as follows :
We are concerned with the assessment year 1968-69, the relevant previous year being Samvat year 2023. The assessee before us is a partnership firm. The assessee-firm consisted of four partners, namely, Laxmichand Hirjibhai, Amratlal Mavjibhai, Ratilal Mavjibhai and Ramjibhai Mavjibhai. All the four partners had equal shares. Up to the assessment year 1967-68, the assessee-firm was assessed tax in the status of a registered firm. For the assessment year under reference, that is, assessment year 1968-69, the assessee-firm filed Form No. 12 required to be filed under s. 184(7) of the I.T. Act, 1961, for the grant of renewal of registration. This Form was signed by three partners, namely, Laxmichand, Ratilal and Amratlal but Ramjibhai Mavjibhai did not sign the form for renewal, being Form No. 12. This was noticed by the ITO and he gave several opportunities to the assessee-firm so that Ramjibhaii Mavjibhai could sign the form but due to disputes amongst the partners it was not possible for the other three partners to get Ramjibhai Mavjibhai to sign Form No. 12. The ITO, therefore, declined to allow continuance of the registration to the firm and assessed the firm in the status of an unregistered firm. The assessee-firm carried the matter in appeal to the AAC and there it was pointed out on behalf of the assessee that assessment of the firm was completed on March 30, 1973, in the status of an unregistered firm. However, the assessment of one of the partners, Ramjibhai Mavjibhai, had been completed by the ITO on 30th March, 1972, that is, one year earlier, and it was also claimed that since the ITO had exercised the option of assessing the partners of the firm directly, no assessment could be made in the hands of the firm, in the light of the decision of the Supreme Court in CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [1966] 60 ITR 95. The AAC accepted this contention urged on behalf of the assessee and he held that the assessment of the firm in the status of an unregistered firm was not sustainable as the assessment in the case of the partner was completed earlier. The AAC also relied on Circular F.No. 75/19/191/62-II-J dated 24th August, 1966, and he held that in view of that circular, the decision in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) would be applicable to the assessment made under the I.T. Act, 1961. In other words, the AAC was of the view that, even according to the instruction of the Board, it was not open to the ITO to make an assessment in the hands of the firm, after having made the assessment in the hands of the partner earlier.
2. Against the decision of the AAC, the revenue went in appeal before the Income-tax Appellate Tribunal. The Tribunal examined the legal position and came to the conclusion that, in view of the difference in language between s. 3 of the Indian I.T. Act of the 1922 and s. 4 and s. 2(31) of the I.T. Act of 1961, the circular issued by the Board and the decision in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC), which was rendered in the context to the 1922 Act, would not apply in the context of the 1961 Act. As regards the circular dated August 24, 1966, referred to above, the Tribunal was of the view that this circular merely stated the legal position and could not be construed as in the nature of directions as contemplated under s. 119 of the new Act of 1961. The Tribunal, in the view that it took, allowed the appeal, set aside the order of the AAC and restored the matter to the file of the AAC with a direction that he should dispose of the other grounds urged in the appeal in accordance with law.
3. Thereafter, at the instance of the assessee, the two questions herein-above set out have been referred to us for our opinion.
4. In CIT v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [1966] 60 ITR 95 (SC), what happened was that three partners who carried on business in groundnut, cotton and cotton seed, were each assessed to tax on a third share in Rs. 51,280, computed as profits of the business for the assessment year 1954-55. Thereafter, the ITO assessed them in the status of an unregistered firm computing the income of the joint venture at Rs. 80,925. The Tribunal held that the ITO had the option to assess the individual parties to the joint venture and, he having exercised that option, it was not open to him thereafter to reassess the same income collectively in the hands of the three parties to the joint venture in the status of an unregistered firm. It was held by the Supreme Court on these facts that the partners of an unregistered firm might be assessed individually or they might be assessed collectively in the status of an unregistered firm the ITO could not, however, seek to assess the same income twice-once in the hands of the partners and again in the hands of the unregistered firm. Thus, this decision of the Supreme Court is based on the well-settled position in law that the same income cannot be subjected to income-tax twice. Income in that particular case was sought to be taxed, once in the hands of the partners and thereafter again in the hands of the unregistered firm.
5. After this decision of the Supreme Court in Murlidhar Jhawar's case [1966] 60 ITR 95, the CBDT issued its circular referred to above on August 24, 1966. By this circular the Board invited the attention to the above-mentioned decision of the Supreme Court in Murlidhar Jhawar's case [1966] 60 ITR 95 and proceeded to state :
"The effect of this decision is that once the Income-tax Officer assesses directly an assessee's share of income from an association of persons or firm, it is not open to him to assess the same income again in the hands of the association of person or firm. In other words, once the assessment of a partner or a member of an association has been made by taxing directly his proportionate share from the firm or association, the Income-tax Officer is precluded from assessing the firm in the status of an unregistered firm or association of persons. Thus, all the partners of the firm or members of the association will have have to be assessed as partners of a registered firm, even though while dealing with the assessment of the Income-tax Officer comes to the conclusion that the firm is not entitled to registration. Although the Supreme Court's decision is under the Indian Income-tax Act, 1922, the Board is advised that it will equally apply to the assessments made under the Income-tax Act, 1961.
In view of the above decision, the Income-tax Officers assessing the partners of a firm should not normally complete the regular assessment of the partners by including their share from the firm unless the assessment of the firm has already been made. The Income-tax Officers assessing the firms must give priority to the disposal of the firm's assessments. They should realise that if they delay the assessments of the firms, they would be responsible for the assessments of all the partners being help up. In an exceptional case if the Income-tax Officer assessing the firm feels that the assessment of the firm is likely to be delayed so that there would be unnecessary delay in the assessment of the partners, he may consider the firm's claim for registration and pass a suitable order under section 26A/184-185 even before passing the order of assessment. After an order on the firm's claim for registration has been passe by the Income-tax Officer, the Income-tax Officer assessing the partners can proceed with their assessments and include their share in the firm, accordingly. The share so included can later be modified by the Income-tax Officer under section 155 after the firm's assessment or reassessment has been made."
6. It must be pointed out that the directions given by this circular were regarding the steps to the taken by the ITO when dealing with the assessment of a firm and also the assessment of the individual cases of the partners of the firm. But the reasoning which went into this circular and the directions of the Board was that the provisions of the 1922 act were on the same lines as the provisions of the I.T. Act, 1961. At the time when the Board issued this circular, the 1961 Act was already on the statute book and had been in force since 1st April, 1962. It was in the context of the I.T. Act, 1961, that the Board directed the ITOs to follow the particular procedure mentioned in the Board's circular so as to avoid any complications and so as to see to it that an unregistered firm would not escape assessment as an unregistered firm because one of the partners of the unregistered firm had been assessed in hid individual capacity because of the inclusion in his assessable income of the share from the profits of that unregistered firm. The position regarding the effect of the circular of the CBDT has been considered by several decisions of the Supreme Court and of this High Court and in Shri Rajan Ramkrishna v. CWT [1981] 127 ITR 1 (Guj), the decisions of the Supreme Court in Navnit Lal C. Zaveri v. K. K. Sen, AAC [1965] 56 ITR 198 at page 203 and in Ellerman Lines Ltd. v. CIT [1971] 82 ITR 913, along with decisions of other High Courts were considered and it was pointed out that according to the Supreme Court's decision in Ellerman Lines' case [1971] 82 ITR 913, even if there was deviation from the provisions of law in force and the circulars deviated from the legal position, the circulars were required to be followed by ITOs since the circulars were benevolent circulars which would go to the assistance of the assessee.
7. Applying the principles laid down by the Supreme Court in Ellerman Lines' case [1971] 82 ITR 913, it is clear that even if in the case of the circular of August 24, 1966, referred to above, there was a deviation from the correct legal position on the part of the CBDT in stating that the provisions of the ACT of 1961 were on the same lines as the provisions of the Act of 1922 and even if that deviation from the law was there when it was stated that the decision of the Supreme Court in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) would apply equally to assessments made under the I.T. Act, 1961, that statement in the Board's circular would be binding on all officers functioning under the Act. Under s. 119(1) of the I.T. Act, 1961 :
"The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follows such orders, instructions and directions of the Board."
8. The proviso to s. 119, sub-s. (1), is not material for the purpose of this judgment. It is, therefore, clear that whatever directions and whatever instructions are given, those directions and instructions are binding on all those who are employed in the execution of the I.T. Act, 1961. The instructions are given by the Board in the circular of August 24, 1966, were that the decision in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) would apply to assessments made under the Act of 1961, and on the basis of that instruction, the Board issued directions as to how the ITOs should proceed with the assessments of firms so that the situation which arose in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) would not arise in a case dealt with under the Act of 1961.
9. In State of Uttar Pradesh v. Raza Buland Sugar Co. Ltd. [1979] 118 ITR 50, the Supreme Court held that the principal that was applicable in tax statutes was that income was subject to tax in the hands of the same person only once. Thus, if an association or a firm was taxed in respect of its income the same income could not be charged again in the hands of the members individually and vice versa. Trust income could not be taxed in the hands of the settlor and also in the hands of the trustee or beneficiary or in the hands of both the trustees as well as the beneficiary. These principles were of course subject to any special provision enabling double taxation in the statute. In this case, the Supreme Court followed the earlier decision in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) and the words "vice versa" used in the second sentence of this passage from the decision of the Supreme Court make it clear that once the partners of the firm or any partner of the firm has been individually assessed so far as his income in the shape of share from the profits of the firm is concerned, the unregistered firm cannot be taxed in respect of that income over again. This decision of the Supreme Court emphasizes that the principle that there should not be double taxation of the same income can be departed from by the Legislature by enacting a special provision in that behalf. However, learned counsel for the revenue, Mr. Raval, has not been able to draw our attention to any special provision enabling double taxation, both in the hands of the unregistered partnerships firm and in the hands of the individual partner at one and the same time.
10. In view of the decision in Raza Buland Sugar Co.'s case [1979] 118 ITR 50 (SC) and applying the principle laid down by the Supreme Court in that decision, it must be held that the circular of the Board of August 24, 1966, must be followed and even a deviation from the legal position is not possible to be attacked under this circular of August 24, 1966, (a) in the light of the principle laid down in Raza Buland Sugar Co's case [1979] 118 ITR 50 (SC), and (b) in the light of the fact that there is no special provision enabling double taxation of this kind in the hands of the unregistered firm and its partners, both.
11. In view of this clear position emerging from the decision of the Supreme Court in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) and in Raza Buland Sugar Co.'s case [1979] 118 ITR 50 (SC) and the effect of the circular of August 24, 1966, which is the sub substratum of the directions given in the circular and the decision that the provisions of the Act of 1961 are on the same lines as the provisions of the Act of 1922, and the decision in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC) being applicable to proceedings under the Act of 1961, the question of considering the difference between the language of the 1922 Act and the language of the 1961 Act, so far as the charging section was concerned and the scheme of s. 3 of the 1922 Act, as against s. 4 of the 1961 Act, read with s. 2(31) of the 1961 Act, in our opinion, would be an exercise in futility.
12. Prior to the decision Raza Buland Sugar Co's case [1979] 118 ITR 50 (SC), it might have been possible to argue, as was argued before the Tribunal in the instant case on behalf of the revenue-which argument was accepted by the Tribunal-that [proceedings under the 1961 Act could not be governed by the principles laid down in Murlidhar Jhawar's case [1966] 60 ITR 95 (SC). But that argument is no longer available. Under these circumstances, we answer the questions referred to us as follows :
Question No. 1. - In the negative, that is, in favour of the assessee and against the revenue.
Question No. 2. - In the negative, that is, in favour of the assessee and against the revenue.
13. The Commissioner will pay the costs of this reference to the assessee.
Alert