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TMI Blog1950 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The petitioner represented a joint Hindu family concern and was carrying on mercantile business in grains prior to 1918 and had been assessed to income-tax under the Income-tax Act, 1918. During the assessment year 15-4-43 to 2-4-44, the joint family became separated and was succeeded by a partnership firm consisting of the members of the family. The petitioner claimed exemption from income-tax under Schedule 5 (4), Income-tax Act, 1939. The Income-tax officer rejected his claim, but the Appellate Assistant Commissioner held that the provisions of Schedule 5 (4) would apply to the facts of the case and allowed the benefit of those provisions to the petitioner in two out of the six businesses carried on by him on the relevant date of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses. The petitioner attempted to establish that he had also salt business in 1918, but that attempt failed for want of evidence. In fact, it was found that the salt-manufacturing business had been started only in 1926 or 1927 while the cardboard factory was started sometime later. The petitioner was called upon to satisfy the tribunal that salt was one of the commodities that were being dealt with by the Hindu undivided family in 1918. The books of account produced by him in support of his case were, however, not accepted and the tribunal found that, as a matter of fact, the petitioner did not have any dealings in salt in 1918 from which the alleged salt business could have grown. 4. Mr. Mohanty, learned counsel for the petitioner, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en assessed to income-tax would not be taken into account and re-assessed. It was with a view to preventing double taxation on the same income that the remedial provision in Schedule 5(4) was enacted. If, therefore, the business which is now assessed to tax is not the same, nor could be said to have arisen from some other business which had been in existence in the year 1918, the petitioner cannot claim any relief under Schedule 5(4). It, is well established that whether a particular business has grown out of some business or whether two or more concerns constitute one business, is essentially a question of fact. The test for ascertaining whether two or more concerns constitute one business or not is to see whether the different businesses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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