Full Judgment
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Special Jurisdiction [Income Tax].ORIGINAL SIDE ITA No.283 of 2004 GAYATRI DEVI PODDAR Versus COMMISSIONER I.TAX, CENTRAL - II BEFORE: The Hon'ble JUSTICE GIRISH CHANDRA GUPTA The Hon'ble JUSTICE DR.
MRINAL KANTI CHAUDHURI Date : 10th July, 2014.
For Appellant : For Respondent : Mrs.A.Banerjee with Ms.Priyanka Prasad, Advocates Mr.S.N.
Dutta, Advocate The Court : The subject matter of challenge in this appeal is a judgment and order dated 17th December, 2003 by which the learned Income Tax Appellate Tribunal dismissed the appeals preferred by the assessees.
One of such assessees is in appeal before us.
We are told that the other assessees have also preferred appeals but particulars thereof are not known to the learned advocate appearing for the appellant before us.
Therefore, those appeals, if any, would be considered if and when occasion might arise.
The grievance of the assessee was with regard to a block assessment for the period between 1987-88 and 1996-97.
A search was conducted on 2nd July, 1996 in the residential premises of one Mr.Bijoy Kumar Gutgutia, a partner of M/S.Sree Krishna Arvind Hatcheries.
Books of account and records were seized.
One of the papers seized during the search, marked for identication BKG/5, indicated that during the assessment year 1990-91 the actual profit earned by the firm was Rs.14.19 lakhs whereas in the books of account the firm had disclosed the net profit at a sum of Rs.8.87 lakhs.
The under-statement of the profit for the relevant year was confirmed by one of the partners during interrogation.
Therefore, a sum of Rs.5,32,000/- was treated as the undisclosed income.
Similar treatment in respect of an income of a sum of Rs.94,966/- for the assessment year 1991-92 was made on the ground that although the aforesaid sum was earned by the firm, but no return had been filed.
The order of the Assessing Officer was unsuccessfully challenged before the learned Tribunal.
The learned Tribunal upheld the views expressed by the Assessing Officer.
Two points have been raised by MRS.Banerjee, learned Advocate appearing for the appellant :a) Even assuming that there was any undisclosed income for the assessment year 1990-91, the benefit under Section 80J.could not have been refused; b) The finding that there was an undisclosed income of a sum of Rs.94,966/- during the assessment year 1991-92 is clearly wrong because this information was collected by the Assessing Officer from the return filed by the appellant herself.
Mr.Dutta, learned Advocate appearing for the Revenue, submitted that there is no proof to show that the assessee was engaged in a poultry business so as to avail the benefit of Section 80JJ.
This submission, according to us, is altogether without any merit.
The assessee admittedly was in the business of a poultry.
All its business was with regard to the poultry which would be evident from the books of account and returns filed.
Therefore, the fact that the assessee was in poultry business, was not required to be proved by any independent evidence.
What is interesting to note is that the learned Tribunal did not disallow the aforesaid contention of the assessee on the ground advanced by Mr.Dutta.
The learned Tribunal rejected the contention of the assessee on the ground that the audited balance sheets were not filed.
Section 80J.does not contemplate any such requirement.
It is true that the assessee had claimed benefit both under Sections 80I and 80JJ.
It is also true that under Section 80I, requirement of an audited balance sheet was there.
Therefore, that requirement cannot be extended to the benefit under Section 80J.and that is why Mr.Dutta did not submit that due to lack of audited balance sheet the benefit could not be given under Section 80JJ.
He raised a point which was never in dispute.
We are, as such, of the opinion that this contention of the learned Counsel must prevail.
The department is directed to give the benefit of Section 80J.to the assessee.
The second submission of the learned Counsel cannot, however, be accepted.
It is a fact that the business of the partnership continued upto 31st July, 1990.
It is also a fact that no income tax return for the financial year 1990-91 and the corresponding assessment year 1991-92 was filed by the partnership firm.
Therefore, there is no escape from the conclusion that the income of the aforesaid sum of Rs.94,966/- constituted an undisclosed income.
The learned Counsel submitted that the assets and liabilities of the partnership firm were taken over by the company.
That could be correct.
But the liability to file the return and to pay the tax for the business continued by the firm till 31st July, 1990 could not have been shifted to the company.
The aforesaid amount can be realised from any of the partners under sub-Section (3) of Section 189 which provides as follows : “(3) Every person who was at the time of such discontinuance or dissolution a partner of the firm and the legal representative of any such person who is deceased, shall be jointly and severally liable for the amount of tax, penalty or other sum payable, and all the provisions of this Act, so far as may be, shall apply to any such assessment or imposition of penalty or other sum.” For the aforesaid reasons, the second contention is rejected.
In the result, the appeal is partly allowed.
The department shall give the benefit of Section 80J.to the assessee in accordance with law.
It is needless to mention that the benefit under Section 80J.should be given to the assessee both for the assessment years 1990-91 and 1991-92.
(GIRISH CHANDRA GUPTA, J.) (DR.
MRINAL KANTI CHAUDHURI, J.) sm/kb