1988 (8) TMI 135 - AT - Income Tax

Tribunal cancels assessment on dissolved firm for 1972-73, rules against tax liability and unjustified assessment reopening.

The Tribunal allowed the appeal, canceling the assessment made on the dissolved firm for the assessment year 1972-73. It concluded that the amount of Rs. ... Remission Or Cessation Of Trading Liability Issues Involved:1. Taxability under section 41(1) of the Income-tax Act, 1961.2. Jurisdiction under section 147(a) for reopening the assessment.3. Continuation of registration for the dissolved firm.Detailed Analysis:1. Taxability under section 41(1) of the Income-tax Act, 1961:The primary issue revolves around whether the sum of Rs. 66,892, refunded as excise duty, should be taxed under section 41(1) in the hands of the dissolved firm. The Income-tax Officer (ITO) initially held that the sum represented a remission or cessation of liability and thus was taxable. However, the Tribunal referenced the Supreme Court decision in CIT v. Hukumchand Mohanlal, which stated that the successor in business or legal representative of an assessee could not be taxed under section 41(1) for amounts remitted and received by them. The Tribunal emphasized that the identity of the assessee who received the initial deduction and the one who obtained the remission must be the same. Since the dissolved firm ceased to exist and the refund was received by the successor firm, the Tribunal concluded that the amount could not be taxed in the hands of the dissolved firm.2. Jurisdiction under section 147(a) for reopening the assessment:The ITO issued a notice under section 148 to reopen the assessment for the dissolved firm, claiming the sum of Rs. 66,892 should be taxed. The Tribunal examined whether the reopening was justified under section 147(a), which requires failure on the part of the assessee to disclose fully and truly all material facts. The Tribunal found no such failure, noting that the dissolved firm had ceased to exist and all relevant facts had been disclosed. The Tribunal concluded that the reopening of the assessment was not justified under section 147(a) and should have been considered under section 147(b), which was barred by limitation.3. Continuation of registration for the dissolved firm:The ITO initially considered the continuation of registration for the dissolved firm up to the assessment year 1971-72. The firm had requested an extension of the previous year from 31-12-1970 to 31-3-1971, which the ITO rejected, stating that the firm was dissolved on 31-12-1970, and thus, its accounting year ended on that date. The Tribunal upheld this decision, noting that the dissolved firm could not carry on business or have an accounting year beyond its dissolution date.Conclusion:The Tribunal allowed the appeal, canceling the assessment made on the dissolved firm for the assessment year 1972-73. It concluded that the amount of Rs. 66,892 could not be taxed in the hands of the dissolved firm under section 41(1) and that the reopening of the assessment under section 147(a) was not justified. The Tribunal also upheld the decision regarding the continuation of registration for the dissolved firm, aligning with the ITO's determination that the firm ceased to exist as of 31-12-1970.