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TMI Blog2015 (11) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... firm to carry forward such income, and it was not in dispute that the amounts had been brought in by the partners into the firm. In the said circumstances, the Tribunal has rightly held that if at all the assessments had to be made, they may be of the partners of the firm and not the firm itself and such amounts could not have been treated as income of the firm by relying upon Section 68 of the Act. - Decided against revenue. - Miscellaneous Appeal No. 433 of 2004 - - - Dated:- 3-9-2015 - Ramesh Kumar Dutta And Anjana Mishra, JJ. For the Appellant : Mrs. Archana Sinha, Mrs. Vijay Lakshmi Srivastava and Mr. Alok Kumar For the Respondent : Mr. Rohitabh Das and Dr. R. Usha JUDGMENT ( Per Honourable Mr. Justice Ramesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Appellate Tribunal, Patna Bench, Patna which by its impugned order dated 21.5.2004 allowed the appeal relying upon a decision of the Madhya Pradesh High Court in the case of CIT vs. Metachem Industries: (2000) 245 ITR 160 and held that the amount should not have been added in the hands of the Firm and the Assessing Officer should have considered adding the amount in the hands of the partners and since that has not been done, the Tribunal has no any hesitation in deleting the addition. Learned counsel for the Revenue-appellant has sought to rely upon a decision of this Court in the case of Commissioner of Income-tax vs. Anupam Udyog: (1983) 142 ITR 133, in which Section 68 of the Income-tax Act, 1961 has been explained at page 137, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he individual partners and it is found as a fact that cash was received by the firm from its partners, then in the absence of any material to indicate that they are the profits of the firm, they cannot be assessed in the hands of the firm, though they may be assessed in the hands of the individual partners. This Court while admitting the matter for hearing has framed the following substantial question of law on which the appeal was to be heard:- Whether the order of the Tribunal deleting the addition of ₹ 8,72,789/- in hands of the firm is legal and valid specially in view of the decisions of the Hon'ble Patna High Court in the case of Anupam Udyog reported in 142 ITR page-133. Learned counsel for the appellants sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of business. The returns submitted by the respondent-firm were processed, and the facts and figures furnished by it were accepted. However, the matter was reopened at a later point of time. The Assessing Officer treated the capital raised by the firm in the form of contributions made by the partners as income. This conclusion was arrived at on the ground that source of income for the partners was not explained. Learned counsel for the appellant placed reliance upon the judgment of the Patna High Court in Commissioner of Income Tax vs. Anupam Udyog. The Tribunal rested its conclusions upon the judgment of the Bombay High Court in Narayandas Kedarnath vs. Commissioner of Income Tax and that of Allahabad High Court in Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impermissible in law. In the judgment relied upon by the appellant itself, the Patna High Court held as under: If there are cash credits in the books of a firm in the accounts of the individual partners and it is found as a fact that cash was received by the firm from its partners, then in the absence of any material to indicate that they are the profits of the firm, they cannot be assessed in the hands of the firm, though they may be assessed in the hands of the individual partners. Cash credits in the individual accounts of members of a joint family with third party cannot be assessed as the income of the family unless the Department discharges the burden of proof to the contrary. Therefore, the view taken by the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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