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Madhukar C. Ashar & Others Versus Union of India & Others

2016 (4) TMI 745 - BOMBAY HIGH COURT

Allocation of income earned by AOP - Held that:- Commissioner of Income completely ignores the past practice accepted by the Revenue in orders passed under Section 143(3) of the Act taxing the income of the AOP on allocation in the hands of its individual members. Nothing is indicated in the impugned order to show that there has been any change either in facts or in law, which would warrant taking a different view from that taken by the Assessing Officer from the A.Y. 2005-06 onwards. Although t .....

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es judicata would not apply to tax matters as cause of action for each assessment year is different / distinct, yet in case there is no change in the factual position or the law, the views expressed in one year are binding for the subsequent years. This on the principle of consistency. Therefore, if the impugned order wants to depart from the consistent view taken earlier, it must so justify. Moreover, the impugned order also completely ignores the fact that there has been no change amongst the .....

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13-4-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Petitioner : Mr. Vimal Gupta, Senior Counsel i/b Amit Shroff a/w Neha Bane For the Respondent : Mr. Nirmal C. Mohanty ORDER P. C. 1. At the request of the Counsel, the petition is being finally disposed of at the stage of admission. 2. This petition under Article 226 of the Constitution of India challenges order dated 18th March, 2015 passed under Section 264 of the Income Tax Act, 1961 (the Act) by the Principal Commissioner of Income Ta .....

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gst the various members of the AOP (incidentally who are also the co-owners of the property) and accepted by the Revenue. On 2nd October, 2012, the petitioners e-filed its Return for the Assessment Year in its status as AOP for the Assessment Year 2011-12. In its Return of Income as was the accepted practice, the petitioners declared its total income at ₹ 33.23 lakhs and indicated that no tax was payable by it. This was in line with the past practice of the income being allocated amongst i .....

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been filed electronically, the earlier consistent practice of the profit of the AOP being allocated to its members as accepted by the Revenue in its order passed under Section 143(3) of the Act for the earlier assessment years, could not be brought to the notice of the Assessing Officer. (c) In the above view, on 30th July, 2014, the petitioners filed a Revision Petition under Section 264 of the Act to the Commissioner of Income Tax. The Revision Petition sought a revision of the Intimation rec .....

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wards, the Income Tax Department has accepted that the income of the AOP has to be allocated amongst its individual members, who would be subjected to the tax under the Act was negatived by holding that the principle of res judicata would not apply to tax proceedings. 4. Mr. Gupta, learned Senior Counsel appearing for the petitioners in support of the petition submits that the impugned order is a nonspeaking order inasmuch as it ignores the evidence led before him that the shares of the members .....

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is without considering the petitioners submissions. In the above view, it is submitted that the order be quashed and the Commissioner be directed to consider the petitioners' application afresh and pass a speaking order considering the various submissions made by the petitioners. 5. As against the above, Mr. Mohanty, learned Counsel for the Revenue in support of the impugned order invites our attention to the various provisions of the Act and in particular to Section 67A and 86 of the Act in .....

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ut jurisdiction, the Intimation under Section 143(1) of the Act would hold the field and the petitioners are bound by it. 6. We find that the impugned order of the Commissioner of Income completely ignores the past practice accepted by the Revenue in orders passed under Section 143(3) of the Act taxing the income of the AOP on allocation in the hands of its individual members. Nothing is indicated in the impugned order to show that there has been any change either in facts or in law, which would .....

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dia 288 ITR 273 the Apex Court held that though the principle of res judicata would not apply to tax matters as cause of action for each assessment year is different / distinct, yet in case there is no change in the factual position or the law, the views expressed in one year are binding for the subsequent years. This on the principle of consistency. Therefore, if the impugned order wants to depart from the consistent view taken earlier, it must so justify. Moreover, the impugned order also comp .....

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