TMI Blog1986 (2) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... he entered into a partnership agreement with Shri Kalulal, Shri Amritlal and one Smt. Jatan Bai, each of them having 1/4th share in the profits and losses of the said firm. In respect of the assessment year 1956-57, an application was moved by the assessee-firm for registration on the basis of the partnership deed and for the assessment year 1957-58, an application for renewal of registration was also moved. Along with the application, the assessee-firm filed an application dated March 6, 1956, for registration of the firm to the Registrar of Firms, certificate of registration was obtained from the Registrar of Firms and an application was made to M/s. Apaj Navinchand Co., Udaipur, for opening a credit account for supply of petrol. The Income-tax Officer examined Shri Kalulal, Shri Amritlal and Smt. Jatan Bai with a view to find out whether they were genuine partners of the firm. Shri Manaklal was not examined. The Income-tax Officer found that there is no specific proof that the proprietary business is converted into a partnership business. The orders of the Income-tax Officer were challenged in appeal before the Appellate Assistant Commissioner and before the Appellate Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 30, 1960, authorising the stores to be delivered to Kalulal. 7. Letter dated December 17, 1958, sent by Kalulal "for Manaklalji " addressed to Shri Man Thakur Saheb Shri Durga Singh Ji in connection with the supply of stones for the construction work of the college building at Bhilwara by M/s. Manaklal Porwal. 8. Letter dated August 2, 1962, by Habib Bhai Ramji Bhai addressed to Manaklal asking him to remind Kalulal, his partner, about the payment of Rs. 1,400 due to him. 9. Miscellaneous correspondence carried on with the Executive Engineer from October 12, 1957, on behalf of the firm, both by Kalulal and Amritlal. 10. Cross-examination of S. K. Mukerjee, Executive Engineer, by the Income-tax Officer, on February 4, 1964." Despite production of fresh evidence by the assessee, the Income-tax Officer as well as the Appellate Assistant Commissioner refused to grant registration to the firm in respect of these three years. The assessee then approached the Tribunal. The matter was heard by the Income-tax Appellate Tribunal, Bombay Bench " B ". Taking into consideration the three criteria propounded by this court in its order dated August 24, 1965, the Tribunal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Tribunal on identical facts is allowed to come to conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on an earlier occasion, that will be destructive of the institutional integrity itself. That is the reason why in a High Court, if a single judge takes a view different from the one taken by another judge on question of law, he does not finally pronounce his view and the matter is referred to a Division Bench. Similarly, if a Division Bench differs from the view taken by another Division Bench, it does not express disagreement and pronounce its different views, but has the matter posted before a fuller Bench for considering the question. If that is the position even with regard to a question of law, the position will be a fortiori with regard to question of fact. If the Tribunal wants to take an opinion different from the one taken by an earlier Bench, it should place the matter before the President of the Tribunal so that he could have the case referred to a Full Bench of the Tribunal consisting of three or more members for which there is provision in the Income-tax Act itself. In the instant case, certain gifts made by members of a Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proceeded to consider the question as to whether the finding of fact arrived at by the Tribunal is in any way vitiated and it was held that it is not in any way vitiated and so no question of law arises. Reference was also made to the decision of the Madras High Court in CIT v. Shri Agastyar Trust [1984] 149 ITR 609. In that case, it was observed that the principle of estoppel or res judicata cannot strictly apply to the decisions rendered in proceedings under the Income-tax Act, on a reference, they have a binding effect both on the assessee as well as on the Revenue, if the point on which the decision has been given is the same. It is well established that the decision on the question as to whether a certain trust is charitable or not, has nothing to do with the fluctuations in the income and that such questions, if decided by a court on a reference made to it, would be res judicata and the same question cannot be subsequently re-agitated. It may be stated that in that case, this question was already considered by the Supreme Court as to whether the assessee would be entitled to exemption under section 4(3) of the 1922 Act in East India Industries (Madras) P. Ltd. v. CIT [1967] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an investor did not estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activities of the assessee in shares began. Nor could it be said, because it was held that the trading activities began in 1943, that the assessment relating to the year 1943 was being reopened. What was being done was only to compute the profits of 1944, which the authorities were entitled to do, by finding out when the trading activity in shares began. In matters of taxation, there can be no question of res judicata. The decision given by an Income-tax Officer for one assessment year cannot affect or bind his decision for another year. Generally, the doctrine of res judicata or estoppel by record does not apply to such decisions." In CIT v. Brij Lal Lohia Mahabir Prasad Khemka [1972] 84 ITR 273 (SC), certain gifts in favour of B and N were not accepted to be genuine for the assessment years 1945-46 and 1946-47, and ultimately the Supreme Court refused to interfere with that finding. In proceedings for the assessment years 1947-48 to 1951-52, considerable additional evidence was adduced, and the Tribunal, after taking into co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criteria propounded by this court when the matter came up before this court in connection with the previous finding and after considering the additional evidence, the Bombay Bench of the Tribunal found that Kalulal and Amritlal were acting as partners and they were working as such in the assessee-firm and besides that the Tribunal also took into consideration the withdrawals made by the three partners Kalulal, Amritlal and Smt. Jatan Bai. Withdrawals have been taken into consideration even after the period of all the three assessment years. If the subsequent circumstances throw light on the question in issue, then, in our opinion, legitimately those circumstances can be taken note of. There were substantial withdrawals in the subsequent years and on that basis, the Tribunal found that those withdrawals show that the partners have shared the profits. Thus, it is not a case where there was no fresh material or additional evidence. When any additional evidence or fresh material comes before the taxing authorities, then they can proceed to take into consideration that fresh material and thereafter arrive at the finding of fact. Even in CIT v. L. G. Ramamurthi's case [1977] 110 ITR 453 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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