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Kishorilal Krishnalal Shah Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Kolkata
Decided On
Judge
Reported in(1984)9ITD523(Kol.)
AppellantKishorilal Krishnalal Shah
Respondentincome-tax Officer
Excerpt:
.....partners in the partnership deed. the assessee produced discharge certificate issued by the hospital concerned in which the above two persons were born to indicate that those persons had attained majority much earlier, prior to their signing of the partnership deed. the assessee further produced horoscope to show majority of those persons on the date of the execution of the deed. the ito did not accept the horoscope as the same can easily be prepared to suit the case. he also held that the application in form no. 11a of the income-tax rules, 1962, was not filed within the specified time and on this ground also, the application for registration had to be rejected. according to the ito, an agreement of partnership in which the minors were shown to be major on the date of the.....
Judgment:
1. The first appeal is by the assessee which is directed against the order of the Commissioner (Appeals), by which he has upheld the order of the ITO in rejecting registration to the firm for the assessment year 1976-77. The second appeal, however, is by the revenue, which is directed against the order of the AAC in directing the ITO to allow registration to the firm for the assessment year 1974-75. The points involved are identical and the facts are common. Accordingly, the counsels of both the sides have addressed us in one set. For the sake of convenience, we consolidate the appeals for disposal by this common order.

2. From the brief narration made in the preceding paragraph, we consider that it would be convenient that we should first deal with the appeal relating to the assessment year 1974-75, as preferred by the revenue.

3. The ITO rejected the claim of the assessee for registration, as per his order under Section 185 of the Income-tax Act, 1961 ('the Act').

The main and effective point or basis for the ITO to reject the claim of the assessee was that the age of two of the so-called partners as per educational certificates, showed that those two partners were minors at the time when they were made parties as full-fledged partners in the partnership deed. The assessee produced discharge certificate issued by the hospital concerned in which the above two persons were born to indicate that those persons had attained majority much earlier, prior to their signing of the partnership deed. The assessee further produced horoscope to show majority of those persons on the date of the execution of the deed. The ITO did not accept the horoscope as the same can easily be prepared to suit the case. He also held that the application in Form No. 11A of the Income-tax Rules, 1962, was not filed within the specified time and on this ground also, the application for registration had to be rejected. According to the ITO, an agreement of partnership in which the minors were shown to be major on the date of the execution of the deed was void and, therefore, the genuineness of the firm was disproved. Accordingly, he rejected the claim for registration.

4. The matter went up further and when the issue was placed before the Tribunal in appeal being IT Appeal No. 1296 (Cal.) of 1978-79, it was pointed out that the AAC, who confirmed the order of the ITO, did not consider the affidavits filed separately by the fathers of the above two partners, who had since attained majority. It was noted that the AAC has not discussed those affidavits at all and the Tribunal was unable to say anything with certainty in that behalf. The Tribunal, therefore, set aside the order of the AAC and directed him to decide the appeal afresh after taking into consideration the affidavits and other evidence available on record. The order was dated 5-8-1980.

5. The AAC in the impugned order dated 14-3-1983 noted this background of the case. He noted that the Tribunal accepted the fact that the application in Form No. 11A was filed in time and. therefore, this part of the objection of the ITO could not stand any more. But in respect of the other point, he noted that the assessee has filed a photo copy of birth certificate from the Calcutta Corporation to show that Birendra Kr. Shah was born on 5-10-1954. The name of his father was Shiblal Shah. It was also stated that this point was supported by the hospital discharge certificate dated 10-10-1954. Similarly, in another photo copy of the birth certificate in respect of Gopinath Shah, son of Kissanlal Shah, the date of birth was shown as 8-8-1954, which was also supported by the certificate of the Calcutta Corporation. According to the assessee, the above two persons were major parties at the time of execution of the partnership deed. The affidavits were filed by the respective fathers. It was submitted before the AAC that the dates of birth shown in the school leaving certificate were not really exact dates of birth, as it was commonly known that in the school leaving certificate, the dates are given in such a manner so that the boys in later life can get advantage of their ages in the matter of service and other facilities. It was also stated that the exact date of birth as given by the Calcutta Corporation and as supported by the hospital certificate should be taken into account. The AAC considered the submissions made before him and noted that under the Act, there was no provision as to how the verification of age should be made in respect of grant of registration. He noted that in view of the discharge certificate given by the hospital and as supported by the Calcutta Corporation, the AAC had no hesitation to admit that these partners were major on the date when the deed was executed. He also noted that on that ground, the registration of the partnership cannot be refused.

The AAC went on futher to note that it has not been challenged by the ITO in his order under Section 185 that the partnership was not genuine and that once he has accepted the partnership as a genuine partnership, there could not be any ground for refusal of registration if the actual dates of birth in respect of the partners were taken into consideration. He directed the ITO accordingly to allow registration for the year under appeal.

6. The revenue brought this appeal before us contending that the AAC erred on facts and in law to direct that the registration should be allowed for the assessment year 1974-75 and equally the AAC erred in accepting the photo copy of the hospital discharge certificate as evidence of proof of age. It is argued at length on behalf of the revenue that the AAC failed to follow the direction of the Tribunal as noted earlier that the affidavits given by the fathers of the two partners should be taken into consideration. It is pointed out that although the AAC did not look into this matter, yet he has allowed registration to the assessee on wrong premises. It is also argued that for the assessment year 1976-77, the Commissioner (Appeals) on identical point of fact and law disallowed the claim for registration of the firm after holding that the certificates given by the educational authorities were indeed final and binding in the matter of age for all intents and purposes and that this was the law of the land, according to the decision of the Hon'ble Supreme Court of India in the case of Jyoti Prokash Mitter v. Justice H. K. Base AIR 1965 SC 961. It is pointed out that the Commissioner (Appeals) for the assessment year 1976-77, following the decision in the case of Jyoti Prokash Mitter (supra), held that Shri Gopinath Shah attained majority on 3-9-1976 and Shri Birendra Kr. Shah attained majority on 10-10-1975. According to the Commissioner (Appeals), these two persons were minors at the time when the deed was drawn up. Accordingly, the departmental representative for the assessment year 1974-75 argues at length that the AAC in his impugned order committed errors in giving the above direction. It is urged that the order of the AAC on the point may be reversed and that of the ITO may be restored.

7. The assessee's learned Counsel supports the order of the AAC for the assessment year 1974-75. It is argued that before the AAC, copies of affidavits in question were placed for consideration in addition to the certificates from the corporation and from the hospital concerned. It is pointed out that the AAC has validly accepted the fact that the above two partners were major at the relevant point of time, basing his finding on the discharge certificates, etc. In respect of the arguments made by the learned departmental representative, connected with the decision in the case of Jyoti Prokash Mitter (supra), it is submitted that the issue and the point involved in that case was completely different and the facts of the present case are distinguishable and, therefore, the department is not justified to rely on the decision of the Commissioner (Appeals) as sought out to be made by the revenue before us. In fact, it is argued that the Commissioner (Appeals) went wrong in holding in the impugned order for 1976-77 that the ratio in the case of Jyoti Prokash Mitter (supra) would be applicable to the facts of the case. It is also urged that the Commissioner (Appeals) in that order should have given due regard to the earlier decision of the Tribunal for the assessment year 1974-75, copies of which were placed before him at the time of the hearing. It was also urged that the Commissioner (Appeals) should not have been brushed aside the evidence produced in the form of discharge certificates issued by the hospital concerned and as supported by the Calcutta Corporation on flimsy ground and, therefore, the AAC for the assessment year 1974-75 was justified in accepting the claim of the assessee. It is urged, therefore, that on these basic facts and circumstances, the order of the AAC for the assessment year 1974-75 should be sustained and the order of the Commissioner (Appeals) for the assessment year 1976-77 requires to be set aside and the claim of the assessee may be allowed.

8. We have heard both the sides at length and we have perused the orders of the authorities below along with the other papers placed before us for our consideration. It is pertinent to note here that the ITO while rejecting the claim for registration for the assessment year 1974-75, has stated in his order under Section 185 that, inter alia, the partnership was void as the minors have been shown as major on the date of execution of the deed. That apart, he noted specifically that the genuineness of the firm was disproved. But no further discussion has been made nor any material part that has been stated earlier, has been brought on record to infer that the firm was not genuine. The AAC in the impugned order for the assessment year 1974-75 as noted earlier, mentioned that it has not been challenged by the ITO in his order under Section 185 that the partnership was not genuine and once the ITO accepted the partnership as genuine, there cannot be any ground for refusal of registration if the actual dates of birth in respect of the partners were considered.

9. As stated in the preceding paragraphs, the Commissioner (Appeals), on the other hand, rejected the claim of the assessee for registration for the assessment year 1976-77, following the ratio of the decision in the case of Jyoti Prokash Mitter (supra). The case of the assessee is that the ratio of that decision would not be applicable to the facts of the present case as the present facts are distinguishable. It is seen in that decided case, that the affidavits were filed by the persons concerned in order to support the claim of that party. But in the present case, apart from the affidavits and horoscope, the assessee produced discharge certificates in respect of both the partners, as granted by the hospital concerned. It is seen that the ITO did not dispute the genuineness or otherwise of these hospital discharge certificates. He, however, declined to accept the same, in view of the fact that in the school leaving certificate, the age of the above two new partners was shown to be below the age of the majority. We agree with the contentions made on behalf of the assessee that the facts of the present case before us are distinguishable as far as the case of Jyoti Prokash Mitter (supra) is concerned.

10. In this connection, we may also refer to another decision of the Hon'ble Supreme Court of India in the case of Umesh Chandra v. Slate of Rajasthan AIR 1982 SC 1057, in which a similar situation has arisen.

Inter alia, it was observed by the Hon'ble Supreme Court as page 1061 in last part of para 21 that in our country, it is not uncommon for parents sometime to change the age of their children in order to get material benefits either for appearing in the examination or for entering a particular service which would be denied to a child as under the original date of birth, he would be either underaged or ineligible.

It was held in the case of Umesh Chandra (supra) that the age certificate as regularly maintained by the school authorities could be accepted as evidence.

11. In the persent case before us, we find that before the ITO, the assessee produced discharge certificate as issued by the hospital concerned, in which the dates of birth of the person concerned have been categorically stated. The ITO, on the other hand, did not dispute the authenticity or genuineness of these hospital discharge certificates. In our opinion, these certificates issued by the hospital were contemporaneous evidence. That apart, the affidavits of the fathers of the two partners have also been taken into account by the authorities below. True, in the case of Umesh Chandra (supra), the Hon'ble Supreme Court agreed with the Hon'ble High Court that in cases like this ordinarily the oral evidence can hardly be useful to determine the correct age of a person and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation (para 7). But in the instant case before us, in addition to the horoscope, the fathers of the persons concerned have filed affidavits in support of their contentions. Besides, the hospital concerned have given a discharge certificate in respect of those persons concerned, which are also corroborated by the register of birth, etc., maintained by the Calcutta Corporation, which, in our opinion, should be considered as vital, being contemporaneous evidence to the present dispute.

12. In this view of the matter and on the facts of the case and after hearing both the sides, we are of the opinion that the registration for the assessment year 1974-75 was correctly allowed by the concerned AAC and the registration was wrongly disallowed by the Commissioner (Appeals) for the assessment year 1976-77. We, therefore, direct that the registration for the above two years under appeal should be allowed.

13. In the result, the appeal by the assessee is allowed and the appeal by the revenue is dismissed.


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