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Commissioner of Income-tax Vs. Bolts and Fasteners Manufacturing Corporation - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 94 of 1978
Judge
Reported in[1983]143ITR297(MP)
ActsIncome Tax Act, 1961 - Sections 185
AppellantCommissioner of Income-tax
RespondentBolts and Fasteners Manufacturing Corporation
Appellant AdvocateR.C. Mukati, Adv.
Respondent AdvocateA.K. Chitale, Adv.
Cases ReferredMohd. Hafeez Khan v. State Transport Appellate Tribunal
Excerpt:
.....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. - now, the relevant provisions of section 185(1) are as follows :on receipt of an application for the registration of a firm, the income-tax officer shall inquire into the genuineness of the firm and its constitution as specified in the instrument of partnership, and- (a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he shall pass an order in writing registering the firm for the assessment year ;(b) if he is not so satisfied he shall pass an order in writing refusing to register the firm. state transport appellate tribunal air1978mp116 we fail to appreciate the..........instrument of partnership, and- (a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he shall pass an order in writing registering the firm for the assessment year ; (b) if he is not so satisfied he shall pass an order in writing refusing to register the firm.' 4. the aforesaid provision came up for consideration before a division bench of this court in mandsaur starch and chemicals v. cit : [1981]127itr727(mp) , where it was observed as follows (p. 729):'the ito has undoubtedly jurisdiction to enquire into the genuineness of the firm. if it is found that there was no intention on the part of the partners that any business should be carried on by the firm, then the ito would be justified in holding that no.....
Judgment:

Sohani, J.

1. By this reference under Section 256(1) of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), the Income-tax Appellate Tribunal, Indore Bench, has referred the following question of law to this court for its opinion :

'Whether the Appellate Tribunal was right in holding that the partnership had come into existence within the ambit and scope of Section 4 of the Partnership Act on the installation of the plant and machinery for the manufacture of nuts and bolts even though actual production of goods had not commenced during the assessment year in question ?'

2. The material facts, giving rise to this reference, briefly are as follows :

The assessee-firm, which was constituted by the deed of partnership dated September 19, 1970, submitted an application for registration of the firm for the assessment year 1972-73. The ITO refused registration on the ground that the firm was not genuine as two partners out of five, were merely financing partners. On appeal the AAC confirmed the order passed by the ITO refusing the registration though on a different ground. The AAC held that there was no proof about actual existence of business carried on by the partners during the relevant previous year. Aggrieved by the order passed by the AAC, the assessee preferred an appeal to the Tribunal. The Tribunal held that since the object of the partnership was to instal plant and machinery for the manufacture of nuts and bolts and as the same was installed, the partnership should be held to have come into existence. The Tribunal further found that the finding of theITO, that the assessee-firm was not genuine, was not based on evidence, but was based on surmises, and the assessee-firm was, therefore, entitled to registration. In this view of the matter, the Tribunal allowed the appeal. , Aggrieved by the order passed by the Tribunal, the Department sought a reference and it is at the instance of the Department that the aforesaid question of law has been referred to this court for its opinion.

3. Having heard learned counsel, we have come to the conclusion that this reference must be answered in the affirmative and against the Revenue. Now, the relevant provisions of Section 185(1) are as follows :

'On receipt of an application for the registration of a firm, the Income-tax Officer shall inquire into the genuineness of the firm and its constitution as specified in the instrument of partnership, and-

(a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he shall pass an order in writing registering the firm for the assessment year ;

(b) if he is not so satisfied he shall pass an order in writing refusing to register the firm.'

4. The aforesaid provision came up for consideration before a Division Bench of this court in Mandsaur Starch and Chemicals v. CIT : [1981]127ITR727(MP) , where it was observed as follows (p. 729):

'The ITO has undoubtedly jurisdiction to enquire into the genuineness of the firm. If it is found that there was no intention on the part of the partners that any business should be carried on by the firm, then the ITO would be justified in holding that no 'partnership' as defined by Section 4 of the Partnership Act, 1932, had come into existence.'

5. Now, in the instant case, the Tribunal has found that the object of the partnership was to instal plant and machinery for the manufacture of nuts and bolts and that as the same was installed, the partnership should be held to have come into existence, even though the actual production of goods had not commenced. The actual production of goods is not necessary for bringing into existence a valid partnership, if the partnership is a genuine partnership. The Tribunal found that the assessee-firm was genuine. In these circumstances, the Tribunal was justified in holding that the partnership had come into existence within the ambit and scope of Section 4 of the Partnership Act on the installation of the plant and machinery for the manufacture of nuts and bolts even though actual production of goods had not commenced during the relevant assessment year. Learned counsel for the Department referred to the Full Bench decision of this court in Mohd. Hafeez Khan v. State Transport Appellate Tribunal : AIR1978MP116 we fail to appreciate the significance of that decision. The question for consideration in that case was whether the bad operational record of a partnership, firm is a relevant factwhen any of the partners of the partnership firm applied for grant of permit under the Motor Vehicles Act, 1939. The decision in [1978] MPLJ 351, has no application in the instant case.

6. For all these reasons, our answer to the question referred to this court is in the affirmative and against the Department. In the circumstances of the case, parties shall bear their own costs.


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