1991 (8) TMI 56 - HC - Income Tax

Summary

Issues Involved:
1. Whether the assessment of a reconstituted firm under section 187(2) requires the adoption of the same previous year, in the absence of any exercise of the option by the assessee to change the previous year.

Issue-wise Detailed Analysis:

1. Assessment of a Reconstituted Firm Under Section 187(2):
The primary question is whether the assessment of a reconstituted firm under section 187(2) of the Income-tax Act, 1961, mandates the adoption of the same previous year if the assessee has not exercised the option to change the previous year. The firm had its previous year ending on October 31 until the assessment year 1980-81. The firm was reconstituted on April 15, 1980, but continued with its earlier constitution until that date. For the assessment year 1981-82, the assessee filed two returns: one for the period from November 1, 1979, to April 15, 1980, and the other from April 16, 1980, to March 31, 1981. The Income-tax Officer (ITO) combined these periods into a single assessment for 17 months, which was upheld by the Commissioner of Income-tax (Appeals).

2. Tribunal's Findings:
The Tribunal disagreed with the Appellate Assistant Commissioner's reasoning and held that technically, there were two firms: one until April 15, 1980, and the reconstituted firm thereafter. The Tribunal stated that the legal fiction created by section 187(2) should be restricted to the purpose of the said section and cannot be extended to treat the same assessee as existing throughout for all purposes under the Act. Thus, the ITO could not assess the income of the entire 17 months under a single assessment. The Tribunal remanded the matter to the ITO, allowing the assessee to exercise its option regarding the previous year in light of section 187(2).

3. Legal Precedents and Interpretations:
The court referred to the Supreme Court's decision in Esthuri Aswathaiah v. CIT [1966] 60 ITR 411, which held that an assessee could not have a "previous year" consisting of more than 12 months without the consent of the ITO. The Supreme Court emphasized that there cannot be two previous years for the same assessment year. This principle was applied to the present case, indicating that the assessee's filing of two returns was incorrect.

4. Application of Section 187 and Section 188:
The assessee's case falls under section 187, which deals with the reconstitution of a firm, rather than section 188, which pertains to the succession of one firm by another. The assessee's filing of two returns, splitting the previous year into two periods, was not in accordance with the law, as established by the Supreme Court in Esthuri Aswathaiah's case.

5. Tribunal's Remand Justified:
The Tribunal found that the assessee did not act voluntarily in changing the previous year but was guided by misconceptions regarding the dissolution and reconstitution of the firm. The Tribunal's decision to remand the matter to allow the assessee to exercise its option properly was deemed appropriate. The court concluded that the assessee could not have divided its previous year into two accounting years and must either adopt the previous year as it was or exercise an option to change it consciously.

Conclusion:
The court answered the question in the affirmative and against the Revenue, affirming that the Tribunal did not commit any error in law by remanding the matter to allow the assessee to exercise its option regarding the previous year. The references were answered accordingly.