TMI Blog1952 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to give them two annas share in the managing agency commission earned by the assessee firm. On the same date the assessee firm entered into another agreement with Hiralal Rungta and Ramsarup Batwal agreeing to pay to these two persons also two annas share in the managing agency commission. Ramsarup was adjudged insolvent in 1939 and on the 19th September, 1942, the assessee firm entered into another agreement with Hiralal agreeing to give him 1 anna instead of 2 annas share jointly to Hiralal and Ramsarup. The assessee firm was assessed in Bombay for the first time in 1942-43 and no claim was made by the assessee firm under Section 12A. The claim was made under Section 12A in the assessment year 1943-44 and a proper declaration as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration has got to be filed every year by the assessee. Once a declaration is filed it would be open to the Income-tax Officer to ask for proof as to the statements made in the declaration at any time subsequent to the filing of the declaration, but there is no obligation whatever cast upon the assessee to file a declaration every year for the purpose of every assessment. It is clear on the language of the section that the declaration has to be filed before the assessment is completed because the Income-tax Officer has got to be satisfied of the facts contained in the declaration. But what is contended is that the declaration having been filed in time for the assessment year 1943-44, it was not necessary for the assessee to file it again wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would arise whether an agreement filed with a declaration covered clearly an obligation on the part of the assessee to share the commission not only during the year of assessment but also in subsequent years. In this very case the agreement to share is conditional, conditional upon the parties who share the commission holding shares of a certain value in the company. Further, the language used by the Legislature also leads one to the conclusion that the intention was to file a declaration in respect of every assessment, because what the declaration has to show is the proportion in which the commission is shared between the assessee and the sharers, and then when the Income-tax Officer is satisfied on proof of the facts contained in the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 43 dealt with the obligation of the Income-tax Officer when he sought to impose a liability upon a person. Section 12A deals with the right of the assessee to claim a certain exemption given to him under the provisions of that section. If every assessment is selfcontained when we are considering the obligation of the Income-tax Officer, it must equally be self-contained when we are considering the rights of the assessee. The assessee must claim whatever right he is entitled to in respect of each assessment and the right given under Section 12A is that he is exempted from paying tax on that portion of the commission which he has earned and which he has shared with a person under an agreement for adequate consideration. Therefore, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer. But if the Appellate Assistant Commissioner is satisfied that a ground is made out for condonation of the delay, he has certainly the power to refer the matter back to the Income-tax Officer. In this particular case, considering that the facts are not disputed and the agreement is held to be a genuine agreement for adequate consideration, we hope that the Income-tax Commissioner would take into consideration the declaration filed by the assessee and would consider the desirability of giving the necessary relief to the assessee firm. A notice of motion has been taken out by the assessee firm to raise a further question which they say arises out of the order of the Tribunal, and the further question suggested is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that. The assessee would have to prove that it was for the purpose of his business or in order to help or assist his business that he had to part with a portion of his commission, and it is only then that he could possibly make a claim under Section 10(2)(xv). The only evidence before the Tribunal in this case was the agreement on which the assessee firm relied and the agreement merely showed the consideration for which the commission was shared. But, as we said before, the mere fact that there is consideration for sharing the managing agency commission is not sufficient to lead to the inference that the commission was shared exclusively and wholly for the purposes of the assessee's business. The Tribunal has taken the view that on tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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