TMI Blog1992 (5) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... mily members found in the locker of a bank which was in the name of Shri Ajaykumar --- vide pages 16 to 25 of the departmental paper book for the assessment year 1978-79. The first two pages of the said document bears the date 1-7-1983. They are said to be in the handwriting of Shri Shankarlal, father of Shri Ajaykumar. The other pages of the said documents in the handwriting of Shri Ajay Kumar. That document is the pivot of the assessments framed in these assessment years. 2.2 The geneology of the family is as under : Dwarkadas (died in 1981) Smt. Chaltibai (died on 4-5-1988) -------------------------------------------------------------------------------------------------------------------------------------------------- Shankarlal Bholaram Sambhudayal Kailashchandra Smt. Badamibai Smt. Krishnabai Smt. Vimlabai Smt. Kiran Devi ------------------------------------- | Vijay Ajay Kumar Prakash Manoj Kumar Kumar Smt. Nainbala Smt. Pramilata -------------------------------------------------------------------------------------------------------------------------------------------------- Ku Sunita Ku. Sumita Ku. Bavita Ku. Kavita Ku. Sarita Ku. Nikita Rajkumar -- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in these appeals. The assessments for the assessment years 1978-79, 1979-80 and 1980-81, were already completed under section 143(1). They were reopened under section 148. Returns of income for the assessment years 1982-83 and 1983-84 were filed voluntarily and they were later validated by issue of notice under section 148. Despite resistance of the assessee, income assessed in the hands of all the family members including wives of four sons of Shri Dwarkaprasad, was clubbed with the income of the assessee in all these assessment years. The assessments for the assessment years 1984-85 and 1985-86 were then pending. Same course was adopted in framing the assessments for those two years (which are now not in appeal). Similarly, for the assessment year 1986-87, the income in the hands of these family members was assessed on protective basis and was clubbed with the income of the assessee-HUF on substantive basis. 3. The assessee went in appeal before the CIT(A). The appeal for the assessment years 1978-79 to 1983-84 (except for the assessment year 1981-82) were heard by the CIT(A)-I and that for the assessment year 1986-87 was heard by the CIT(A)-II. The CIT(A) took the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel, also the dates on which all these adjournments were given have been enlisted by the Assessing Officer while submitting his Remand Report, which is annexed to this order, as Annexure 'A'. 5. For seeking a remand report from the Assessing Officer, the learned CIT-II without passing any independent order wrote a letter dated 4-10-1989 to the Assessing Officer. The Assessing Officer issued summons to certain members of the assessee-HUF for appearing on 19-12-1989. The counsel for the assessee, Shri R.L. Rawka, took a short adjournment and on the next date requested for copy of remand order. It appears that the Assessing Officer could furnish the copy of letter dated 4-10-1989 to the assessee on 23-1-1990. 6. The CIT(A)-II was of the view that the partial partition dated 30th March, 1957, acted upon by the members of the HUF. He was also of the view that a recognition was to be given to the alleged partial partition under section 171 of the Income-tax Act, 1961, and in absence of such recognition, it could not be treated as valid partition. Further, according to him, the document containing of movable and immovable properties in the names of various family members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of each branch of the family was independent and separate in as much as that the sales tax licence was taken separately and independently and the income was being assessed separately for the last many years. In support of the appeal against the remand order, the learned counsel contended that it is no order in the eyes of law except that it exhibits the ever zealous of the learned CIT(A)-II to confirm the assessment on any ground whatsoever and to condemn the Assessing Officer. 9. We have minutely persued the evidence produced before us and considered the submissions of the learned counsel for the parties. It appears that there is a fundamental mistake in invoking either section 25-A of the 1922 Act or section 171 of the 1961 Act. These sections have no application to the case of Hindu family which has never been before a joint family. In this connection reference may be made to CIT v. Kantilal Ambalal [1992] 192 ITR 376 (Guj.), Additional CIT v. Durgamma [1977] 166 ITR 776 (AP), IAC of Agricultural Income-tax Sales Tax Special v. Poomulli Manekkal Parmeswaran Namboodiripad [1972] 83 ITR 108 (SC). These observations of the Hon'ble Supreme Court in the case of P.M.P. Nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee HUF. Thus, they have been assessed independently of the assessee for the last 26 years. No doubt, the rule of res judicata is not applicable to income-tax proceedings but there should be finality and certainty in revenue proceedings. If no fresh facts are there, the earlier decision should be followed. In this connection, the following observations in Full Bench decision of Madras High Court in T.M.M. Sankaralinga Nadar and Brothers v. CIT AIR 1930 Mad. 209 reproduced with approval by the Bombay High Court in H.A. Shah Co. v. CIT [1956] 30 ITR 618 (628) need attention--- "It seems to us that where income-tax officials have, after enquiry, proceeded to assets the assessee on a certain basis, though they may be entitled to reopen the enquiry, they cannot arbitrarily change the assessment simply on the ground that the succeeding officer does not agree with the preceding offer's finding. The position is just like the position of any two parties who have proceeded on a certain basis in their relation. It may be open to one party to reopen the matter. But if he wants to do so, there should be fact which would entitle him to do it. If fresh facts come to light which on an invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25A of 1922 Act or section 171 of 1961 Act. The case of N.K. Sharda Thampatty's case relied on by the learned Standing Counsel has no application to the facts of the instant case since section 171 is not applicable. 32. The only solitary evidence adopted by the department as sheet-anchor for reopening the assessments upto the assessment year 1983-84 and thereby to make additions of income of all the members of the family to the income of the assessee, is a document found in the locker of Ajaykumar in which assets of all the members of the family have been listed. The inference of the department thereby is that had the family not been joint, there was no purpose of making such a consolidated list of all the assets of all the members of the family. No doubt, Shri Ajaykumar and his father, Shri Shankarlal, must have had made much labour in preparing such list, but the inference of the department that the family was joint is far-fetched particularly in view of the fact that there was a partial partition in the family and the members of the family were assessed independent of the income of the family right from 1958-59. There could be a thousand and one reason for preparing such docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to hang, without conclusion. "2.3 Secondly, mental tension can arise and continue over such a long time, only if there is an amount of guilt like to withhold from a Lawful Authority. This was not probed further." It is not clear if he wanted the Assessing Officer to get Shri Ajay Kumar medically examined after lapse of nearly three years. The number in which Shri Ajaykumar has been examined was really distressing. In this connection, his statement recorded on 24-1-1986 may be referred to. 16. On the basis of the consolidated list of all immovable and movable assets in the names of several family members found in the locker of Shri Ajay Kumar, it was presumed by the ITO that the family was joint and the entire assets belonged to the joint family. He further, presumed that there was partition of all those assets valued at Rs. 28 lakhs into four shares and one of such shares was allotted to Shri Ajay Kumar. On the foundation of such baseless presumption a question was put to Shri Ajay Kumar that in the family partition, he was allotted assets worth Rs. 22 lakhs. He, when replied that he did not know of such partition, again a question was put to him as to whom it was kn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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