1978 (6) TMI 68

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....einafter referred as the Act and for the latter two years the original assessments themselves have given rise to the dispute. 2. In respect of the first five appeals, the assessee filed additional grounds challenging re-opening of the assessments by invoking the provisions of s. 147 but the additional grounds were withdrawn. As a matter of fact, the assessee's advocate, Shri D.S. Gupta, specifically submitted that he did not want to press the question of re-opening of the assessments. He, however, submitted that ground numbers 3, 4 and 5 stated as additional grounds were in fact arguments which should be kept in focus while adjudicating these appeals. We do not want to dilate upon this aspect because the arguments can be raised at any ti....

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....gg. Kalka 12,200 6,707 . M/s. Roshan Lal & Sons, Chd. 12,200 41,151 1974-75 M/s. Truck Suppliers Corpn. 14,927 — . M/s. Hari Engg. Kalka 14,927 6,253 . M/s. Roshan Lal & Sons, Chd. 14,297 32,140 4. A similar issue on similar facts came up before this bench of the Tribunal in the caseof Kishori Lal (Ind) vs. ITO (4), (Asst. yrs. 1971-72 to 1975-76) and have been decided by us in favour of the assessee by our order dt. 20th June, 1978. We have held in the said case that when an individual representing his HUF, is a partner in a firm and in such firm that individual's wife and/or minor child is also a partners, the provisions of s. 64(1) (i) and (ii) of the Act cannot be invoked to clu....

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....dgement in the case of Joti Prasad Agarwal & others vs. ITO (2) which judgement has been referred to, with approval, by the Supreme Court in the case of ITO vs. Bachu Lal Kapoor(3). 7. s. 64 creates a fiction and that fiction cannot create a further fiction to give raise to double taxation. In the case before us, assessments in the hands of the assessee's wife and child were completed much before the present assessments, from which these appeals flow. Inasmuch as, whereas the wife's assessment for the asst. yr. 1968-69 was completed on 5th Feb.,1969, the assessee's assessment for the same year is dt. 16th Dec.,1975. Similarly, in the later years there is a substantial spacing between the assessments of wife and minor child and the re-ass....