1982 PLP 177 (PTD)

SYED MUHAMMAD HUSAIN, J.‑This is an application at the instance of the heirs of a partnership firm under section 66 of the Income‑tax Act for a decision of this Court on the question as to whether more than one appeal can be filed before the Appellate Commissioner on behalf of the same assessee‑firm for the same assessment year. This question also involves the other two issue, namely, whether the Income‑tax Department could reopen the case in question under section 34 of the Income‑tax Act and also whether the Income‑tar Department could treat the deposits of the partners in their personal account being the concealed income of the firm as Such. Three brothers constituted a partnership firm which of course stands dissolved now. The firm in question was assessed previously and Income tax was paid by the firm as such. Subsequently the firm's case was reopened for re‑assessment under section 34 of the Income‑tax Act when the personal bank deposits of two of the partners were treated as a concealed income of the firm and assessment was made thereon. Against the order of the Income‑tax Officer two appeals were preferred before the Appellate Commis sioner at the instance of two partners of the firm. One Raja Mia, a partner of the firm filed a series of appeals on 6‑6‑72, whereas Md. Esack another partner filed another series of appeals on 6‑8‑

72. Both the appeals were filed by and on behalf of the partners of the firm for the same assess ment year and the Appellate Commissioner heard the two sets of appeals and dismissed both the appeals on 26th and 28th December, 1972, respec tively. No further appeal vas preferred against the decision of the Appellate Commissioner before the Tribunal so far as the appeals filed through one Raja Mia is concerned. Md. Esack, however, filed further Appeal before the Tribunal who having dismissed the same, the heirs of the said Md. Esack have filed this application before the Court under section 66 of the Income‑tax Act. So far as the question of re‑opening of the cases under section 34 of the Income‑tax Act is concerned it cannot be disputed that such reassessment can be made under section 34 of the Income‑tax Act when evidently the bank deposits in the personal account of the two partners of the firm escaped the notice of the income‑tax Department while assessing the Income tax of the firm concerned. so far as the question whether the bank deposits in the personal account of the partners of the firm could be taken as an income of the firm is concerned, this question can only be decided after ascertaining whether such amount lying in the bank deposits of the partners of the firm In their personal account were used in the transaction of business of the firm as such. Evidently the Income‑tax Department after careful examining the papers, records and documents relating to the hank deposits of the two partners of the firm in their personal account was satisfied that such amount actually belonged to the firm and this income having been concealed, the assessment thereon was escaped as such. This is a finding of fact arrived at by the Income‑tax Officer which has although been upheld by the Appellate Commissioner and the Tribunal. This Court exercising its jurisdiction under section 66 of the Income‑tax Act cannot disturb such finding of fact consecutively and concurrently arrived at by the Income‑tax] Officer, Appellate Commissioner and the Tribunal. In disposing of these appeals the Tribunal has also held that before the Appellate Commissioner two sets of appeals would not be filed on behalf of the same assessee firm for the same assessment year by two partners thereof. Section 30 of the Income‑tax Act provides for filing of appeal objecting to the amount of income assessed by an assessee. The appeal in question can only be filed by the assessee as such. In the present case, the assessee being the firm and not the partners thereof only one appeal would be filed by or on behalf of the assessee for one assessment year. Refer ence has been drawn to third proviso of the Income‑tax Act relating to the fil ing of appeal by a partner of a firm when they are assessed individually. In the present case no partner of the firm was assessed individually and in such circumstances the question of filing any appeal by or through such individual partner of firm does not arise when an appeal is governed under section 30 of the Income‑tax Act. In the result, this application is rejected. Prayer for leave to appeal is also refused. SULTAN HOSSAIN KHAN, J.‑I agree. Application rejected.