THE COMMISSIONER OF INCOME TAX vs. GOPINATH MANOHAR WADI
What did the High Court hold?
The High Court held that Section 292B of the Income Tax Act is not applicable to the present case. The Court distinguished between a mistake in a notice or order of authorization and issuing a notice in the name of an entirely different person. The respondent, an individual, and Mahendra Auto Services, an AOP, are distinct "persons" and "assessees" under Section 2(31) of the Act. The Court reasoned that if a notice is issued to a stranger, it cannot be regarded as a mistake curable under Section 292B. It clarified that this was not a case where the respondent was the proprietor of Mahendra Auto Services, in which case a notice in the trade name might be considered a notice to the proprietor. Here, Mahendra Auto Services is a separate taxable entity. Furthermore, the Court noted that an AOP or firm does not have implied authority to act or represent its members in personal matters, and thus service of notice on the AOP would not be considered service on the respondent-assessee. The Court also found that the satisfaction recorded by the Assessing Officer under Section 158-BD was in respect of the AOP's alleged undisclosed income, not the respondent's, and no satisfaction was recorded concerning the respondent. Therefore, the Court found no error in the Tribunal's view that the authorization and satisfaction under Section 158-BD were invalid.
What were the facts?
The Revenue appealed against an order of the Income Tax Tribunal which held that the assessment made against the respondent, Shri Gopinath Manohar Wadi, was without jurisdiction. The respondent is an individual and also a member of an Association of Persons (AOP) named "Mahendra Auto Services", where his share of income was 10%. A search and seizure operation was conducted at the business premises of Mahendra Auto Services from July 10-11, 1997, resulting in the seizure of Rs. 1,50,000 of unaccounted income. The assessment against the respondent was made under Section 158-BC of the Income Tax Act. The Tribunal found that the warrant of authorization was issued in the name of "Mahendra Auto Services" and not against the respondent, and no satisfaction was recorded by the Assessing Officer under Section 158-BD of the Act concerning the respondent.
What were the issues?
1. Whether, in the facts and circumstances, the Income Tax Tribunal was right in holding that in the absence of a warrant of authorization in the name of the Assessee and in the absence of any satisfaction recorded by the Assessing Officer under Section 158-BD of the Income Tax Act, the assessment was without jurisdiction? Assessee's Contentions: The judgment does not record any specific contentions made by the assessee before the High Court, other than implicitly supporting the Tribunal's decision. Revenue's Contentions: Mr. Alok Sharma, learned Assistant Solicitor General for the Revenue, contended that any error in the warrant of authorization (issued in the name of Mahendra Auto Services instead of the respondent) or in the order of satisfaction required under Section 158-BD would not invalidate the proceedings in view of Section 292B of the Income Tax Act. He argued that Section 292B provides that proceedings shall not be invalid merely by reason of any mistake, defect, or omission if they are in substance and effect in conformity with the intent and purpose of the Act.
Which sections of the Income-tax Act were involved?
Section 158-BD,Section 292B,Section 2(31)
AI-generated summary — verify with the full judgment below
{1} drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD TAX APPEAL NO.124 OF 2008 The Commissioner of Income TaxI APPELLANT Kendriya Rajaswa Bhavan, Gadkari Chowk, Old Agra Road, Nashik VERSUS Shri Gopinath Manohar Wadi
RESPONDENT 29, Vaibhav Nagar, Golibar Tekadi Dhule ....... Mr.Alok Sharma, Assistant Solicitor General for appellant Mr.S.P.Shah, Advocate for the respondent ....... [CORAM : D.G.KARNIK, AND S.B.DESHMUKH, J.J.] DATE : 14
th February 2012
ORAL JUDGMENT (PER D.G.KARNIK, J.): 1. We state below the question of law on which admission of the appeal is urged by Mr.Alok Sharma, learned Assistant Solicitor General appearing for the Revenue. "Whether, in the facts and circumstances, the Income Tax Tribunal (For short "Tribunal") was right in holding that in absence of warrant of authorization in the name of the Assessee and in absence of any satisfaction
{2} having been recorded by the Assessing Officer u/s 158 BD of the Income Tax Act, the Assessment was without jurisdiction?" 2. Mr.Gopinath Manohar Wadi, the Assessee, who is the respondent before us, is assessed as an individual. Mr.Wadi is also a Member of Association of Persons (A.O.P.), which, at the relevant time, was carrying on business in the name and style as the "Mahendra Auto Services". There were in all 6 persons, who constituted the A.O.P. and the share of Mr.Wadi in the income of the Mahendra Auto Services, was only 10%. A search and seizure u/s 132 (1) of the Income Tax Act, 1961 was carried out in the business premises of the “Mahendra Auto Services” from 10 th July 1997 to 11 th July 1997. Cash of Rs.1,75,540/ was found in the search out of which an amount of Rs.1,50,000/ was seized as unaccounted income. Some other evidence of undisclosed income of the A.O.P. was also found. Assessment of the income of Mr.Wadi was made purportedly under section 158BC of the Income Tax Act by the Assistant Commissioner of Income Tax. After a partly unsuccessful appeal, the appellant as well as Mr.Wadi approached the Tribunal. The Tribunal held that the warrant of authorization was issued in the name of "Mahendra Auto Services" and no warrant of authorization was ever issued against Mr.Wadi, the respondent herein. The Tribunal further held that in the absence of any warrant of authorization in the name of the respondent and in the absence of any satisfaction having been recorded by the
{3} Assessing Officer, u/s 158BD of the Income Tax Act, 1961,(for short the I.T. Act) qua the respondent, the impugned assessment order was without jurisdiction. The Tribunal accordingly allowed the appeal filed by the respondent and dismissed the appeal filed by the Revenue as infructuous. 3. Mr.Sharma, learned Assistant Solicitor General, appearing for the Revenue, relying upon the provisions of Section 292B of the I.T. Act, submitted that any error in the warrant of authorization issued in the wrong name of Mahendra Auto Services the A.O.P. instead of in the name of the respondent and any error in the order of satisfaction required to be recorded under section 158BD would not invalidate the proceedings in view of section 292B of the I.T. Act. Section 292B of the I.T. Act reads as under: "292B. Return of income, etc., not to be invalid on certain grounds No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act”. 4. Section 292B of the I. T. Act lays down that no return of income, assessment, notice, summons or other proceedings furnished or made or issued or taken or purported to have been
{4} taken or furnished or made or issued or taken in pursuance of the I.T. Act shall be invalid merely by reason of any mistake, defect or omission in the return of income, assessment, notice or summons. In our view, Section 292B of the I.T. Act is not applicable to the present case. There is difference between a mistake in a notice or in an order of authorization and issuing the notice in the name of an altogether different person. The respondent is assessed to Income Tax as an individual and the Mahendra Auto Services is separately assessed to Income Tax as an A.O.P. They are separate “persons” as defined under section 2 (31) of the Income Tax Act and are distinct “Assessees”. If the notice had been correctly addressed and issued but contained but some error such as the date of notice or the amount or any other like defect that would not invalidate the notice in view of Section 292B of the I.T. Act. But if the notice is issued not to the respondent Assessee but to a stranger that cannot be regarded as a mistake curable under section 292B of the I.T. Act. Here, we may mention that it is not the case that the respondent is the proprietor of Mahendra Auto Services. If the respondent had been the proprietor of the business of the Mahendra Auto Services then the things would have been different. Because notice issued in the business / trade name of a proprietor could be a notice issued to the proprietor himself, who carries on the business in the trade name. In the present case, admittedly Mahendra Auto Services is a different taxable entity. It files separate returns. It is an Association of Persons (A.O.P.) which consists of 6 persons and share of the present Assessee is only
{5} 10% in the income of the said A.O.P. This is also not the case where the notice of a firm is served on a partner. But this is a case of notice of a person served on the AOP. It may be possible to serve the notice of a firm on a partner, as the partner has an implied authority under section 19 of the Partnership Act to act on behalf of the firm. However, a firm or an A.O.P. does not have any implied authority to act or represent any of the partners of the firm or the members of the A.O.P. in respect of their personal matters. A firm or an A.O.P. or any of its partners or members cannot be regarded as agents of other partners or members or of each other. Consequently, the service of the notice on the firm or the A.O.P. would not be regarded as a service on the respondentassessee. 5. Personal satisfaction of an Assessing Officer u/s 158 BD of the I. T. Act was in respect of the alleged undisclosed income of the Mahendra Auto Services which is an A.O.P. He was not satisfied and at least had not recorded that he was satisfied that the respondent had earned any undisclosed income. Consequently, we find no error in the view taken by the Tribunal that the authorization as also the satisfaction u/s 158BD of the I.T. Act was invalid. There is no merit in the Appeal, which is hereby dismissed summarily. [S.B.DESHMUKH, J.] [D.G.KARNIK, J.] drp/A12/ta12408
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