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TMI Blog2015 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... and clandestinely made it over to export firm. Thus, its ownership over said amount of ₹ 1.71 Crore is not in dispute. The amount really belonged to it and, therefore, it was and is answerable and has to pay tax on it. It cannot be permitted to urge that as Export firm has paid tax on that amount, the same cannot be demanded from it. The mischief of assessee Private Limited company has been detected and it cannot be permitted to take any advantage of it. If this argument of assessee Private Limited company is accepted, it is nothing but allowing it to reap benefit of mischief played by it. If on account of its own mischief, it has sustained any loss, it cannot make a grievance for the same. However, it is settled that it cannot be permitted to take advantage of its own wrong. The revenue has corrected the wrong and has also demanded tax from the assessee Private Limited company to whom that income really belonged. Thus, the Export firm has to pay tax as it has actually utilized that amount as its income while the Private Limited Company (assessee) has to pay tax as it attempted to conceal that income. The income really belongs to it and it was and is answerable to pay tax upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taxed again for said sum of ₹ 1.71 crore. The assessee company has submitted that it amounts to double taxation. It needs to be noted that other assessee viz. Export firm is not party to these proceedings. The facts are not in dispute. In fact, I.T.A.T. while forwarding statement of claim on 15.03.1993 has in para 4 stated that Question No. 1 as reframed by High Court does not arise out of order of Limited Company. Because question was so framed, I.T.A.T. took assistance of findings of fact reached in the matter of export firm. I.T.A.T., however, has pointed out that said Export Firm is not the applicant in Reference Application Nos. 250 to 252/Nag/7374. 5. The assessee Private Limited Company and the other assessee (Export firm - not party), appeared to be two units which belong to a group of companies commonly known as Durgaprasad and More group of companies. Both assessees deal in export of manganese to various countries. During search and seizure proceedings conducted at residential premises of partners of Export firm and at the office of the Limited Company in 1963, the Enforcement Department of income-tax seized various books of accounts and documents. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel, has relied upon Circular No. 157 dated 26.12.1974 and judgment of the Hon'ble Apex Court in the case of Income Tax Officer vs. Bachu Lal Kapoor (1966) 60 ITR 0074, to urge that same income cannot be taxed twice. 9. Shri Parchure, learned counsel has invited attention to findings recorded by I.T.A.T. to contend that it is not same income and same assessee is not being subjected to tax in relation to that income. He contends that thus concept of double taxation is not attracted here. 10. The perusal of Circular No. 157 dated 26.12.1974 shows that it is on Assessment of discretionary Trust under Section 164/166 of the Income Tax Act. The circular mentions that in spite of clear instructions issued by Board on 24.02.1967, neither Section 11 of the Income Tax Act, 1922, which gave option to the Department to tax either the representative assessee or the beneficial owner of the income nor the parallel provisions of Income Tax Act, 1961, contemplated assessment of the same income both in the hands of the trustees and the beneficiaries, instances reveal that such double assessment was being carried out. This circular mentions that general principle is to charge income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h converse position was legally impossible under the Act. So long as the HUF exists, the Hon'ble Apex Court found that the individual thereof cannot be separately taxed in respect of income of HUF. It clarified that if under some mistake, such income was assessed to tax in the hands of the individual members (which should not have been done), the revenue has to make appropriate adjustments as otherwise assessment made in respect of that income on the HUF would be contrary to the provisions of the Act. The Hon'ble Apex Court has also observed that appropriate adjustments by revenue in such matter is not reopening of final orders of assessment but in reality, to arrive at the correct figure of tax payable by the HUF. 12. In the case of Jamnaprasad Kanhaiyalal vs. Commissioner of Income Tax, M.P., Bhopal, reported at (1981) 3 SCC 441, the Hon'ble Apex Court has held that voluntary declaration under Section 24 of the Finance Act, 1965, relates to income earned by the declarant only. It is held that when such declaration is made by partners individually, immunity conferred by Section 24 is available to the declarant partners and not to crediting firm or any other person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. The amount really belonged to it and, therefore, it was and is answerable and has to pay tax on it. It cannot be permitted to urge that as Export firm has paid tax on that amount, the same cannot be demanded from it. The mischief of assessee Private Limited company has been detected and it cannot be permitted to take any advantage of it. If this argument of assessee Private Limited company is accepted, it is nothing but allowing it to reap benefit of mischief played by it. If on account of its own mischief, it has sustained any loss, it cannot make a grievance for the same. However, it is settled that it cannot be permitted to take advantage of its own wrong. The revenue has corrected the wrong and has also demanded tax from the assessee Private Limited company to whom that income really belonged. Thus, the Export firm has to pay tax as it has actually utilized that amount as its income while the Private Limited Company (assessee) has to pay tax as it attempted to conceal that income. The income really belongs to it and it was and is answerable to pay tax upon it. In this situation, we find that the concept of double taxation is not attracted in the present matter. 15. We, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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