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Commissioner of Income-tax Vs. Durgaprasad Rajaram Adatiya - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 68 of 1980
Judge
Reported in[1984]146ITR580(MP)
ActsIncome Tax Act, 1961 - Sections 184
AppellantCommissioner of Income-tax
RespondentDurgaprasad Rajaram Adatiya
Appellant AdvocateB.K. Rawat, adv.
Respondent AdvocateB.L. Nema, Adv.
Cases ReferredBadri Narain Kashi Prasad v. Addl.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though 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. .....the deed of partnership and it does not provide for the distribution of profits and losses on the minor attaining majority. this view does not go counter to the circulars issued by the board. the circulars emphasized that continuation of registration should not be refused simply because a minor previously admitted to the benefits of the partnership has been made a full-fledged partner, and departed from the view which was then held by the allahabad high court but which now stands overruled by the full bench. the circulars do not provide anything contrary to the view of the full bench of the allahabad high court which this high court has followed in the two cases mentioned above.3. now, in the instant case, the continuation of registration has to be refused not simply on the ground that.....
Judgment:

G.P. Singh, C.J.

1. This is a reference made by the Income-tax Appellate Tribunal referring for our answer the following question of law :

' Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in directing the Income-tax Officer to allow registration to the assessee '

2. The reference relates to the assessment years 1971-72 and 1972-73. The assessee-firm was constituted by a deed of partnership executed on 10th November, 1961, and it consisted of four partners and three minors were admitted to the benefits of the partnership. The minors attained majority on 4th May, 1966, 27th May, 1967, and 21st July, 1971, respectively, and elected to become partners. The partnership was not granted continuation of registration for the assessment years 1967-68, 1968-69 and 1969-70. There was a reference to this court in respect of these assessment years. The judgment of the court, in this reference, is Durgaprasad Rajaram Adatiya v. CIT : [1982]134ITR601(MP) . It was held that as the instrument of partnership did not provide as to how the losses would be distributed after each minor became major and elected to become a partner, the partnership could not be granted continuation of registration. In the normal course, following that decision, we should hold that the Tribunal was in error in granting continuation of registration for the assessment years 1971-72 and 1972-73. The Tribunal has, however, relied upon two circulars, one issued by the CBR and the other by the CBDT. The first circular is dated 3rd January, 1962. It is to the effect that where there is no doubt about the genuineness of a partnership, registration need not be refused simply because a minor previously admitted to the benefits of the partnership has been made a full-fledged partner on attaining majority and no new partnership deed has been drawn up to give effect to this change. The second circular is dated 20th March, 1969. It is stated therein that the Board was of the opinion that the view taken by the Allahabad. High Court was a narrow view of the law and the claim for continuation was not to be refused simply because a minor previously admitted to the benefits of the partnership had been made a full-fledged partner on attaining majority and no new partnership deed had been drawn up to give effect to this change if the firm was otherwise genuine. The view then held by the Allahabad High Court was that in every case whenever a minor admitted to the benefits of a partnership attained majority and elected to be a partner of the firm, there was a change in the constitution of the firm and the partnership was not entitled to continuation of registration. This view was taken in Ganesh Lal Laxmi Narain v. CIT : [1968]68ITR696(All) and Ram Narain Laxman Prasad v. ITO : [1972]84ITR233(All) . It was to get over this view that the Board issued the second circular of 1969. The view taken by the Allahabad High Court in these cases was overruled by a Full Bench in Badri Narain Kashi Prasad v. Addl. CIT : [1978]115ITR858(All) . The view of the Full Bench is that if the deed of partnership envisages the eventuality of the minor becoming a full-fledged partner on attaining majority and provides for the distribution of profits and losses, in that event, there would be no change in the constitution of the firm and the partnership would be entitled to continuation of the registration. It is this view which our High Court followed in Ganesh Rice Mills v. CIT : [1981]132ITR257(MP) and Durgaprasad Rajaram Adatiya v. CIT : [1982]134ITR601(MP) . According to the view that now prevails, continuation of registration cannot be refused simply on the ground that a minor admitted to the benefits of the partnership has become a partner on attaining majority. It will be refused on the ground that the eventuality of the minor becoming a partner on attaining majority was not foreseen in the deed of partnership and it does not provide for the distribution of profits and losses on the minor attaining majority. This view does not go counter to the circulars issued by the Board. The circulars emphasized that continuation of registration should not be refused simply because a minor previously admitted to the benefits of the partnership has been made a full-fledged partner, and departed from the view which was then held by the Allahabad High Court but which now stands overruled by the Full Bench. The circulars do not provide anything contrary to the view of the Full Bench of the Allahabad High Court which this High Court has followed in the two cases mentioned above.

3. Now, in the instant case, the continuation of registration has to be refused not simply on the ground that minors admitted to the benefits of the partnership have become full-fledged partners on attaining majority but on the ground that the partnership deed does not provide for such an eventuality and does not specify the shares of the partners in losses after the minors became partners on attaining majority. It was on this basisthat the refusal of continuation of registration was upheld in the referencerelating to the same firm for the assessment years 1967-68, 1968-69 and1969-70, The same view must be taken in this reference which relates tothe assessment years 1971-72 and 1972-73.

4. For the reasons given above, we answer the question as follows:

'The Income-tax Appellate Tribunal was not justified in law in directing the Income-tax Officer to allow continuation of registration.'

5. There will be no order as to costs of this reference.


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