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Bala Prasad Kundanlal Agarwal Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 237 of 1979
Judge
Reported in[1984]145ITR560(MP)
ActsIncome Tax Act, 1961 - Sections 185 and 256(1)
AppellantBala Prasad Kundanlal Agarwal
RespondentCommissioner of Income-tax
Appellant AdvocateB.L. Nema, Adv.
Respondent AdvocateB.K. Rawat, Adv.
Excerpt:
.....presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - a reading of the partnership deed dated 16th october, 1971, clearly shows that the new firm was constituted on account of the death of balaprasad and his widow was taken as a partner in his place......the appellate tribunal was correct in holding that in spite of the recital in the partnership deed dated october 16, 1971, about smt. sunder bai deemed to be a partner with effect from october 31, 1970, the firm was not entitled to registration as the partnership came into existence only on october 16, 1971? 2. whether, on the facts and in the circumstances of the case, the appellate tribunal was justified ia holding that the income-tax authorities were right in refusing registration under section 185 of the income-tax act? 3. whether the appellate tribunal was correct in holding that the assessee was not entitled for registration even for a part of the assessment year, i.e., from december 14, 1970, to diwali 1971?' 2. the facts briefly stated are that originally the assessee-firm which.....
Judgment:

1. This is a reference under Section 256(1) of the I.T. Act, 1961. The questions of law referred by the Tribunal for the opinion of the High Court are as follows:

'1. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in holding that in spite of the recital in the partnership deed dated October 16, 1971, about Smt. Sunder Bai deemed to be a partner with effect from October 31, 1970, the firm was not entitled to registration as the partnership came into existence only on October 16, 1971?

2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified ia holding that the income-tax authorities were right in refusing registration under Section 185 of the Income-tax Act?

3. Whether the Appellate Tribunal was correct in holding that the assessee was not entitled for registration even for a part of the assessment year, i.e., from December 14, 1970, to Diwali 1971?'

2. The facts briefly stated are that originally the assessee-firm which was constituted on 1st July, 1959, consisted of seven partners including one Balaprasad. The firm was granted registration. Balaprasad died on 14th December, 1970, On 16th October, 1971, a fresh deed of partnership was executed in which, Smt. Sunder Bai, the widow of Balaprasad, was taken as a partner in his place. The partnership deed recited that the firm would be deemed to have come into existence with effect from 31st October, 1970, and Smt. Sunder Bai would be deemed to be a partner with effect from that date. The newly constituted firm applied for registration for the assessment year 1972-73. The ITO refused to grant registration and this order was confirmed by the AAC. The Appellate Tribunal also, in further appeal, upheld the order refusing registration.

3. The reasoning of the Tribunal is that the old firm which was dissolved on the death of Balaprasad on 14th December, 1970, continued up to that date. The new firm in which Smt. Sunder Bai, widow of Balaprasad, was taken as a partner in his place, could not be deemed to commence from 31st October, 1970, i.e., from a date anterior to the date of dealh of Balaprasad. The Tribunal has also expressed the view that as the partnership deed was executed on 16th October, 1971, the firm would be deemed to be constituted on this date in the absence of any oral agreement entered into for constituting the firm.

4. We agree with the reasoning of the Tribunal that as the old firm continued till 14th December, 1970, the new firm could not take effect from 31st October, 1970, i.e., from a date anterior to the date of death of Balaprasad. A reading of the partnership deed dated 16th October, 1971, clearly shows that the new firm was constituted on account of the death of Balaprasad and his widow was taken as a partner in his place. This new firm could come into existence only with effect from 15th December, 1970. As regards the question that the new firm came into existence on the date when the deed of partnership was executed on 16th October, 1971, the Tribunal has not given any finding that there was no oral agreement entered into between the surviving partners and Sunder Bai constituting the new firm before 16th October, 1971. A perusal of the deed of partnership will show that there is a clear recitation that after the death of Balaprasad on 14th December, 1970, the surviving six partners and the widow of Balaprasad, Smt. Sunder Bai, agreed to continue the business of the old firm. It appears that this oral agreement was entered into immediately after the death of Balaprasad. In the background of this agreement there is no difficulty in holding that the new partnership came into existence on 15th December, 1970. It is to be noted that the Tribunal has not given any finding that the partnership was not genuine. If the firm was not held to be not genuine, the Tribunal should not have confirmed the order refusing registration. It is also clear that although the firm was not in existence during a part of the previous year, still it was entitled to registration for the entire assessment year.

5. For the reasons given above, we answer the questions as follows :

(1) Sunder Bai became a partner from 15th December, 1970, and the new firm must be deemed to have come into existence on that date.

(2) The Appellate Tribunal was not justified in holding that the income-tax authorities were right in refusing registration.

(3) The assessee was entitled for registration for the entire assessment year. There will be no order as to costs of this reference.


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