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TMI Blog1971 (9) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... aland. The appeals filed on the basis of the special leave granted are Civil Appeals Nos. 1426 and 1427 of 1971. At present we are only concerned with those appeals. The judgment under appeal is one rendered in a reference under section 66(1) of the Indian Income-tax Act, 1922 (to be hereinafter called " the Act"). The Income-tax Appellate Tribunal, after stating the case, referred the following six questions for the opinion of the High Court : " 1. Whether, on the facts and in the circumstances of the case and upon a true interpretation of the provisions of the second proviso to section 34(3), the assessment for the year 1955-56 on the applicant-Hindu undivided family made on February 6, 1961, pursuant to an order under section 27, cance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case, in computing the accumulated profits of Messrs. Shyam Sunder Tea Co. (P.) Ltd. within the meaning of section 2(6A)(e), the Tribunal acted rightly in refusing to allow, (a) deduction in respect of loans advanced by the said company to the erstwhile family of Messrs. Hanutram Ramprotap which amounted to Rs. 3,60,989 as at December 31, 1954, and increased to Rs. 3,80,567 as at August 16, 1955, and written off at the end of the year 1955 ; (b) deduction in respect of Rs. 51,049 and Rs. 66,206 for the assessment years 1955-56 and 1956-57, respectively, being the difference between the written down value of depreciable assets of the said company as per income-tax records and their book value ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. On December 16, 1960, the Income-tax Officer set aside the order of assessment made on February 29,1960. Therein, he stated that fresh assessment will be made in due course. An assessment was made on the Hindu undivided family on February 6, 1961, on the basis of the return submitted on October 29, 1959. Prima facie this assessment is barred by section 34(3) which says : " No order of assessment or reassessment, other than an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or sub-section (1A) of this section shall be made after the expiry of four years from the end of the year in which the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e status of an individual. The same person can be taxed both as an individual as well as the karta of his family. The two capacities are totally different. The liability to be taxed as an individual is different from the liability to be taxed on behalf of his Hindu undivided family. The individual and the Hindu undivided family are totally different units of taxation. They are two different assessees. The ex parte order was made on February 29, 1960, against Saharia in the status of an individual. What was set aside under section 27 was the assessment made on him in the status of an individual. There was no assessment against the Hindu undivided family. Hence, there was no question of setting aside any assessment made against the Hindu undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits." It is not disputed that M/s. Shyam Sunder Tea Co. (P.) Ltd. is not a company in which the public are substantially interested. It is a private company. The only question that was in issue was that as the shares in question stood in the name of Saharia, can they in law be considered as the shares of the Hindu undivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1955-56, the same cannot be brought to tax, as assessment in respect of that year was not made within the time prescribed.
In the result Civil Appeals Nos. 1956-57 of 1969 are dismissed as being not maintainable. There will be no order as to costs in those appeals. So, far as Civil Appeal No. 1426 of 1971 (appeal relating to assessment year 6 concerned, it is also dismissed but Civil Appeal No. 1427 of 1971 (appeal relating to assessment year 1956-57) is allowed to the extent mentioned above and the case remitted to the High Court for answering the questions that were not answered by it. As both sides have partly succeeded and partly failed before this court, there will be no order as to costs . X X X X Extracts X X X X X X X X Extracts X X X X
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