1982 (10) TMI 11 - HC - Income Tax

Issues Involved:
1. Applicability of Section 187(1) for reassessment of a retired partner's share income.
2. Applicability of Section 247 in precluding the assessee from objecting to the inclusion of the reassessed share income.
3. Binding nature of a compromise settlement on a retired partner.

Detailed Analysis:

1. Applicability of Section 187(1) for Reassessment of a Retired Partner's Share Income:

The primary issue revolves around whether the reassessment of the firm's income under Section 147 of the Income Tax Act, 1961, can lead to the reassessment of a retired partner's share income under Section 187(1). The court observed that the revision of the assessment for the assessment year 1960-61 in consequence of the reassessment made on the firm was carried out under Section 155(1)(a) of the Act. This provision allows the Income Tax Officer (ITO) to amend or revise the determination of the share income of a partner following the reassessment of the firm. The court emphasized that this power must be exercised similarly to the power of rectification under Section 154, which requires prior notice to the affected assessee.

The assessee argued that Section 187 does not explicitly refer to reassessment proceedings under Section 147, suggesting that the absence of such a reference should preclude the ITO from applying Section 187 to reassessment proceedings. However, the court rejected this argument, stating that Section 147 is merely an enabling provision for assessing escaped income and does not need to be explicitly mentioned in Section 187. The court concluded that Section 187 is broad enough to encompass both original assessments and reassessment proceedings, thus allowing the reassessment of the retired partner's share income. The court's answer to this question of law was in favor of the Revenue and against the assessee.

2. Applicability of Section 247 in Precluding the Assessee from Objecting to the Inclusion of the Reassessed Share Income:

The second issue pertains to whether Section 247 precludes the assessee from objecting to the inclusion of the reassessed share income. The court clarified that Section 246(1)(f) grants an assessee the right to appeal against an order under Section 155. The Tribunal had incorrectly invoked Section 247 to bar the assessee from denying liability for the enhanced share of income. The court noted that Section 247 only prevents a partner from questioning the determination of the firm's total income and its apportionment among partners in an appeal. It does not preclude an assessee from challenging the liability for their share of income in their individual assessment.

The court emphasized that the right of appeal under Section 246(1)(f) against an order under Section 155 is significant and cannot be negated by Section 247. The court concluded that the Tribunal's reference to Section 187 as a technical objection to the assessee's grounds of appeal was misplaced. Therefore, the court answered this question of law against the Department and in favor of the assessee.

3. Binding Nature of a Compromise Settlement on a Retired Partner:

The assessee contended that the reassessment proceedings, which resulted in a compromise settlement between the remaining partners and the Income Tax Department, should not bind him since he was not a participant in those proceedings. He cited Section 19(2)(e) of the Indian Partnership Act, 1932, which limits a partner's implied authority to admit liability in legal proceedings against the firm.

The court referred to a precedent set in S. B. Ameeruddin v. ITO [1973] 92 ITR 366, where it was held that Section 155 of the Income Tax Act overrides any agreement between the partners. The court noted that the reassessment of the firm's income and the consequent adjustment of the share income of a retiring partner are not subject to any private agreements among partners. Therefore, the enhancement of the assessee's share income following the firm's reassessment is binding on him, regardless of his participation in the reassessment proceedings or any compromise settlement.

Conclusion:

1. The court held that Section 187(1) applies to the reassessment of a retired partner's share income, and the reassessment proceedings under Section 147 can lead to the reassessment of the partner's share income.
2. The court found that Section 247 does not preclude an assessee from challenging the reassessment of their share income in their individual assessment.
3. The court concluded that the reassessment of the firm's income and the consequent adjustment of the share income of a retiring partner are binding, regardless of any compromise settlement or the retired partner's participation in the reassessment proceedings.

The first question was answered in favor of the Revenue, and the second question was answered in favor of the assessee. There was no order as to costs.

← Previous Next →