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TMI Blog2018 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing the disputed amount substantively in the hands of BHK, as stated earlier, there was no justification for assessing same in the hands of his wife also. Considering the above, we are of the opinion that there is no legal or factual infirmity in the order of the FAA. - Decision in the case of SP Jaiswal (1997 (3) TMI 4 - SUPREME Court) followed - Decided against the revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... Kothari(BHK) and the assessee were the beneficial owner of the account i. e. Sisal Holding Limited, that BHK had paid tax together with interest, amounting to ₹ 73. 04 lakhs 'in order to buy peace and avoid protracted litigation. 'However, the AO held that the disputed amount had to taxed in her hands. 3. Aggreived by the order of the AO, the assessee filed an appeal before the First Appellate Authority(FAA)and made detailed submission and relied upon certain case law. She raised objection about re-opening of the case. After considering the available material, he held that the AO was very well within his jurisdiction to evoke the provisions of section 147/148 of the Act. He further held that in the case of Late BHK the AO had referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed income in the hands of the husband of the assessee, that there was no justification in assessing the same income in her hands. He referred to the case of Ch. Atchaiah (supra). 5. We have heard the rival submissions and perused the material before us. Undispute facts of the case are that there was an account with HSBC, Geneva in the name of Sisal, that the assessee and her husband were the beneficiaries of the account, that the peak credit of the account for the year under consideration was ₹ 1. 40 crores, that the husband of the assessee admitted that the disputed amount was his income, that he paid tax and interest for the additional income offered, that the department accepted the claim made by Late BHK and assessed & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that income was wrongly assessed in the hands of Late BHK, it should have annulled the his assessment order. Two substantive orders for the same year and for the same income cannot survive. 5. 1. We agree that income should be assessed in right hands, as argued by the DR. But, which hands are the right hands has to be decided by the AO. He accepted that the Late BHK was the real beneficiary of the Sisal Account and assessed the disputed income in his hands. The DR has not brought anything on record to prove as to how the conclusion drawn by the AO was factually or legally incorrect. Nothing prevented him in assessing the Sisal account income in right hands, but he should not have taxed the same income twice i. e. in two hands. The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to tax either the association of persons or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the association of persons in law, the association of persons alone has to be taxed; the members of the association of persons cannot be taxed individually in respect of the income of the association of persons. Consideration of the interests of the Revenue has no place in this scheme. Where Parliament wanted to provide an option, or a discretion, to the Income-tax Officer, it has provided so expressly. Section 183 [which has since been omitted with effect from April 1, 1993, by the Finance Act, 1992] provided that in the case of an unregistered firm, it is open to the Income-tax O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his family members was nothing but a paper device designedly made to reduce the tax burden of the appellant. But, in the case under consideration the AO had alleged that there was an attempt to reduce the tax burden. The husband of the assessee had the tax at the maximum marginal rate. The AO had accepted the return filed by him and no revisionary proceedings were initiated. After assessing the disputed amount substantively in the hands of BHK, as stated earlier, there was no justification for assessing same in the hands of his wife also. Considering the above, we are of the opinion that there is no legal or factual infirmity in the order of the FAA. So, upholding the same, we decide the effective ground of appeal against the AO. ITA/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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