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Parbhu Lal Pearey Lal Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad
Decided On
Reported inAIR1935All523; 157Ind.Cas.116
AppellantParbhu Lal Pearey Lal
RespondentCommissioner of Income-tax
Excerpt:
- - 11 on partnership in the contract act there are various provisions in regard to the death of partners and matters of that nature which will clearly not apply to a firm......in muttra which has various firms and one of these firms is styled parbhu lal pearey lal. this firm parbhu lai pearey lal has been in existence with effect from the year 1932-33. previous to that there was no separation in the joint family and the joint family was somewhat loosely described as parbhu lal pearey lal. an assessment was made for the year 1931-32 on the income of year and in making that assessment the income-tax officer of muttra found in the books of the joint family a certain khata called onkar mai babu lal, sir account which stood as follows: credit rs. 78,910-2-9 debit rs. 47,299-14-0 profit rs. 81,610-4-9 ___________________ total rs. 73,910-2-9. ___________________2. enquiries were made from bombay and it was found that the bombay firm of onkar mai bau lal had.....
Judgment:

Niamatullah, J.

1. This is a reference by the Commissioner of Income-tax on a direction of this Court on an application made by an assessee. The facts are somewhat complicated. There is a joint family in Muttra which has various firms and one of these firms is styled Parbhu Lal Pearey Lal. This firm Parbhu Lai Pearey Lal has been in existence with effect from the year 1932-33. Previous to that there was no separation in the joint family and the joint family was somewhat loosely described as Parbhu Lal Pearey Lal. An assessment was made for the year 1931-32 on the income of year and in making that assessment the income-tax officer of Muttra found in the books of the joint family a certain Khata called Onkar Mai Babu Lal, Sir account which stood as follows:

Credit Rs. 78,910-2-9

Debit Rs. 47,299-14-0

Profit Rs. 81,610-4-9

___________________

Total Rs. 73,910-2-9.

___________________

2. Enquiries were made from Bombay and it was found that the Bombay firm of Onkar Mai Bau Lal had heavy losses during the year under assessment and the Muttra joint family Parbhu Lal Pearey Lal had also losses. No income-tax therefore was assessed on either the joint family in Muttra or the firm Onkar Mal-Babu Lal in Bombay, but the income-tax authorities have as sessed income-tax on what they allege to be a firm constituted by the parttiers, one partner being the joint family Parbhu Lal Pearey Lal in Muttra and the other partner being the firm Onkar Mal-Babu Lal in Bombay. The transactions of this alleged partnership show a profit and therefore that profit has been assessed to income-tax. Objection was taken by Parbhu Lal Pearey Lal and those objections were overruled, and Parbhu Lal Pearey Lal also submitted an application to the Income-tax Commissioner to make a reference to this Court. The Income-tax Commissioner held that no question on law arose as in his opinion there was a partnership. This Bench held that the decision as to whether there was a partnership was a decision on a question of law and that as a question of law had arisen under Section 66(2) the ,Income-tax Commissioner was bound to make a reference to this Court. Accordingly this Court selected seven of the questions in the application of Parbhu Lal Pearey Lal and required the Commissioner to make a statement on the case. That statement has now been supplied. The first of these questions is:

Whether the association of the firm Messrs. Parbhu Lal Pearey Lal of Muttra and of the firm Messrs. Onkar Mai Babu Lal of Bombay in certain joint transactions in 1929-30 could and did form in law a new partnership or a new firm within the moaning of Section 239, Contract Act, or of any other law.

3. Learned Counsel for Commissioner has taken objection to the wordings of this question and he alleges that the attention of the Income-tax Commissioner was not drawn to the importance of the word 'firm' and that in fact Parbhu Lal Pcarey Lal of Muttra during the year in question were not a firm, but were a joint Hindu family. This in fact has been stated by the Commissioner. Learned Counsel desired further that inquiry should have been made in regard to Onkar Mal-Babu Lai of Bombay. But we consider that it is too late now to raise any point as to whether Onkar Mal-Babu Lal are a firm or joint Hindu family as all along they have been described by the Commissioner and the authorities under him as a firm. Therefore the question is whether a partnership can be formed by an association of a joint Hindu family in Muttra with a firm in Bombay. This question of the interpretation of the word 'partnership' has been already before this Court. We may mention that in Section 3, Income-tax Act, income-tax may be charged:

on all income, profits and gains of the previous year of every individual Hindu undivided family, company, firm and other association of individuals.

4. The only word in this section under which the alleged partnership could be brought is the word 'firm.' In Section 2(6)(a) it is stated that 'firm', 'partner' and 'partnership' have the same meanings respectively as in the Contract Act, 1872. In Section 239, Contract Act, it is stated:

Partnership is the relation which subsists between pesons who have agreed to combine their property, labour or skill in one business and to share the profits thereof between them Persons who have entered into a 'partnership' with one another are called code sic a firm.

5. No doubt in the General Clauses Act which was in force at the time of the Contract Act, there was a definition which is similar to the definition in General Clauses Act, 10 of 1897, for the word 'person.' This definition in Section 3(39) states that 'person' shall include any company or association or body of individuals, whether incorporated or not. If therefore that definition were to be applied to the Contract Act, Section 239, then the argument for the Commissioner would be correct. It is however provided in Section 3, General Clauses Act, that these definitions should not be applied if there is anything repugnant in the subject or context. In Chap. 11 on partnership in the Contract Act there are various provisions in regard to the death of partners and matters of that nature which will clearly not apply to a firm. This matter has already been considered by a Bench of this Court in a ruling reported in Jai dayal Madan Gopal, In the matter of 1933 All. 77. The reference in that case was:

Whether having regard to the deed of partnership, dated 16th April 1928, and to other relevant evidence on the record, the finding that the registered firm Jai Dayal Madan Gopal, Benares, is in its corporate capacity a partner in nine other firms bearing the same name was a legal and proper finding.

6. Both learned Judges held that one firm cannot legally be a partner in another firm. Learned Counsel for the Commissioner argued that this ruling was in regard to registered firms. A firm is registered under Section 26(a), Income-tax Act, and any firm constituted under an instrument of partnership specifying the individual shares of the partnership may apply for registration. It will be observed that this provision prevents a Hindu family from applying for registration as a firm.

7. But we are of opinion that the ruling in question does not draw a distinction between a registered firm and any firm. On p. 1000 the learned Chief Justice stated:

But if the question were asked whether one firm can legally be a partner in another firm then I would unhesitatingly proceed to answer it. There is authority for the view that one firm cannot legally be a partner in another firm.

8. This passage shows that no importance was attached by their Lordships to the point that the firms in that particular case had been registered under the Income-tax Act. We consider that we should follow this ruling in the present case and we therefore hold that no partnership could be legally constituted between the Bombay firm and the Hindu joint family in Muttra. Under these circumstances the answer to the first question must be in the negative. This governs all the other remaining six questions in the case and. in our opinion the income-tax authorities have no power to impose a fine under Section 25 of the Act, on the ground that the alleged partnership did not report its discontinuance. With these observations we direct that our opinion shall be forwarded to the Income-tax Commissioner. We allow costs to the applicant at Rs. 200, for which a certificate has been filed. This covers the present hearing and also the former hearing. We also assess for the use of the department the fees of learned Counsel for Commissioner at Rs. 150.


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