TMI Blog2018 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... on for assessing same in the hands of his wife also. Considering the above, we are of the opinion that there is no legal or factual infirmity in the order of the FAA. - Decision in the case of SP Jaiswal (1997 (3) TMI 4 - SUPREME Court) followed - Decided against the revenue. - I. T. A. /2343-2344/Mum/2016 - - - Dated:- 28-3-2018 - S/Sh. Rajendra, Accountant Member and Amarjit Singh, Judicial Member Revenue by : S/Shri Abhijit Patankar V. Vidhyadhar-CIT-DR Assessee by : Shri Vijay Mehta ORDER Per Rajendra AM Challenging the orders dated 29/01/2016 of the CIT(A)-8, Mumbai, the Assessing Officer(AO) has filed present appeal. The assessee is an individual and is director of M/s. Spellbound Trading Pvt. Ltd. Details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be added to her total income. Vide her letter dated 25. 02. 2014, stated that she did not own the said account. From the information received from the investigation wing of Chinnai, the AO found that husband of the assessee Bhadrashayam Harshad Kothari(BHK) and the assessee were the beneficial owner of the account i. e. Sisal Holding Limited, that BHK had paid tax together with interest, amounting to ₹ 73. 04 lakhs in order to buy peace and avoid protracted litigation. However, the AO held that the disputed amount had to taxed in her hands. 3. Aggreived by the order of the AO, the assessee filed an appeal before the First Appellate Authority(FAA)and made detailed submission and relied upon certain case law. She raised obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hands of the assessee. He referred to the cases of Ch. Atchaiah(218 ITR 239), Sirram Jagannath(250 ITR 689), S P Jaiswal (224 ITR 619). The Authorised Representative(AR)stated that same income could not be taxed in two hands, that department had assessed the disputed income in the hands of the husband of the assessee, that there was no justification in assessing the same income in her hands. He referred to the case of Ch. Atchaiah (supra). 5. We have heard the rival submissions and perused the material before us. Undispute facts of the case are that there was an account with HSBC, Geneva in the name of Sisal, that the assessee and her husband were the beneficiaries of the account, that the peak credit of the account for the year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sisal Account. A conscious decision was taken by the departmental authorities after deliberating upon all the facts and the husband of the assessee was asked to pay the taxes for the income appearing in the Sisal account. If the department was of the opinion that income was wrongly assessed in the hands of Late BHK, it should have annulled the his assessment order. Two substantive orders for the same year and for the same income cannot survive. 5. 1. We agree that income should be assessed in right hands, as argued by the DR. But, which hands are the right hands has to be decided by the AO. He accepted that the Late BHK was the real beneficiary of the Sisal Account and assessed the disputed income in his hands. The DR has not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression person includes, inter alia, a firm and an association of persons or a body of individuals whether incorporated or not. There are no words in the present Act which empower the Income-tax Officer or give him an option to tax either the association of persons or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the association of persons in law, the association of persons alone has to be taxed; the members of the association of persons cannot be taxed individually in respect of the income of the association of persons. Consideration of the interests of the Revenue has no place in this scheme. Where Parliament wanted to provide an option, or a discretion, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, we hold that facts of that case are not applicable to the facts of the case under appeal. In the case of SP Jaiswal(supra), the Hon ble Apex Court had held that advancing of loan by the assess to his family members was nothing but a paper device designedly made to reduce the tax burden of the appellant. But, in the case under consideration the AO had alleged that there was an attempt to reduce the tax burden. The husband of the assessee had the tax at the maximum marginal rate. The AO had accepted the return filed by him and no revisionary proceedings were initiated. After assessing the disputed amount substantively in the hands of BHK, as stated earlier, there was no justification for assessing same in the hands of his wife also. Consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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