TMI Blog1994 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... tober 19, 1973, leaving behind his widow, Minalben, and three minor children. Smt. Minalben was inducted as a partner in the said firm. In the deed of partnership dated October 23, 1973, it was stated she is being inducted in the place of Kumudchandra and her share was the same as that of her late husband, namely, one-sixth share. According to a declaration made by Smt. Minalben on November 9, 1973, the three children were declared to be entitled to have a right in the share from the firm, Atmaram Maneklal and Sons, in equal ratio as she and her three children were entitled to share the estate of the late Shri Kumudchandra each having 1/4th share therein. As the partners were prepared to take only one of them as a partner in the place of the late Shri Kumudchandra, only Smt. Minal Devi was inducted into the firm as a partner. Smt. Minalben disclosed 1/4th of one-sixth profit from the said firm in her income. The three minor children who were being separately assessed also included 1/4th of one-sixth profit of the firm falling to the share of Smt. Minalben in their respective returns. The assessments of the assessee as well as the three minor children were accordingly completed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of 75 per cent. of the share of Smt. Minalben. That share has already been taxed in the assessment of these minors and the effect of the order under section 263 of the Act would be to tax it again in the assessment of Smt. Minalben for this very year. Such double taxation is not permissible. In view of the aforesaid conclusions, the Tribunal quashed the order of the Commissioner of Income-tax revising the assessment order of Smt. Minalben for the assessment year 1975-76. Learned counsel for the Revenue urged that the Tribunal having found that the order passed by the Income-tax Officer including only 25 per cent. of the share received from the firm, Atmaram Maneklal and Co., in the assessment of Smt. Minalben was erroneous, it was not justified in quashing the order of the Income-tax Officer on the ground that it would result in double taxation. It would be necessary to notice the provisions of section 263 of the Act for examining the validity of the arguments of learned counsel for the Revenue. Section 263 of the Act reads as under : "263. (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wjee Dadabhoy and Co. v. S. P. Jain [1957] 31 ITR 872, the Calcutta High Court opined about the object behind the provisions of section 33B of the Act which reads as under : " There is no doubt about the object to be achieved by the Act, namely, to see that the State is enabled to raise the maximum revenue and that the revenue is collected according to law. Section 33B, like the other sections, namely, section 33A or 34, is calculated to stop the gaps through which there may be escape of realisation of the revenue. Obviously, it was considered that the other provisions in the Act--wide as they are--did not properly attain this object. Section 33A granted a power of revision to the Commissioner but it was subject to the condition that the order should not be prejudicial to the assessee. Section 33B confers power which enables the Commissioner to interfere with the orders of the Income-tax Officer, where such orders are considered prejudicial to the interests of the Revenue. The powers under section 33B can only be invoked in the case of persons in whose favour orders have been made or assessments have been effected which arc' considered prejudicial to the interests of the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the interests of the Revenue only if it is found that the assessment for the year was disclosed on the basis that an income had been earned which is assessable. Even where an income has not been earned and is not assessable, merely because the assessee wants it to be assessed in his or her hands in order to assist someone else who would have been assessed to a larger amount, an assessment so made can certainly be erroneous and prejudicial to the interests of the Revenue." From the aforesaid, it can well be said that the well-settled principle in considering the question whether an order is prejudicial to the interests of the Revenue or not is to address oneself whether the legitimate revenue due to the exchequer has been realised or not or can be realised or not if the orders under consideration are allowed to stand. For arriving at this conclusion, it becomes necessary and relevant to consider whether the income in respect of which tax is to be realised, has been subjected to tax or not or if it is subjected to tax, whether it has been subjected to tax at the rate at which it could yield the maximum revenue in accordance with law or not. If the income in question has been taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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