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R.S. Lamba and Co. Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Chandigarh
Decided On
Judge
Reported in(1985)14ITD21(Chd.)
AppellantR.S. Lamba and Co.
Respondentincome-tax Officer
Excerpt:
.....of birth certificate enclosed) on the sole fact hereabove, it becomes crystal clear that in the deed of partnership he was conducted as partner but on the revelation of a fact that he could not become a partner that his name was scored off from the partnership deed as also his signatures from form no. 11 from the date of very coming into being of the partnership firm.8. when we go through the affidavit of shri kulvinder kumar, we find in para 2 of the said affidavit, it is mentioned that 'i never joined the firm r.s. lamba & co., yamuna nagar, as partner though my name was mistakenly included as a partner, for which i was not legally entitled'. it is apparent that contents of the explanation filed before the commissioner and affidavit are contradictory. this fact is clear that.....
Judgment:
1. The dispute raised in this appeal preferred by the assesses pertains to the assessee's claim of registration. The assessment year involved is 1980-81.

2. As a matter of fact, in original assessment, registration was accorded by the ITO. It was in proceedings initiated by the Commissioner under Section 263 of the Income-tax Act, 1961 ('the Act') that registration was ordered to be cancelled. In order to appreciate the issue, it is necessary to briefly summarise the facts.

3. As per the assessee, the firm started in November 1978 and the relevant accounting year ended on 31-12-1979. On 7-3-1979, stamps were purchased for the execution of the necessary partnership deed and though the partnership deed was executed on the said stamps purchased on 7-3-1979, the date of execution was mentioned as 1-11-1978, originally. In the said deed, originally 10 partners were mentioned which included one Shri Kulvinder Kumar, son of Shri Purshotam Lal , serially numbered as partner No. 3 and the said partnership deed was also signed by the said minor Shri Kulvinder Kumar, so much so that on the first page of Form No. 11 of the Income-tax Rules, 1962 which was submitted before the ITO with the said partnership deed, Shri Kulvinder Kumar had signed the same. However, on the back of Form No. 11 his name was neither mentioned nor struck off.

4. The Commissioner (Appeals) found the grant of registration by the ITO to be erroneous and against law on basis of two factors, first being the invalidity of the deed as it was written on the date when the stamp paper was not available and secondly, according to him, the minor was a partner and, therefore, the firm was invalid. After giving the said notice and having a reply from the assessee to the said show-cause notice, the Commissioner (Appeals) ordered cancellation of the registration.

5. The learned counsel for the assessee vehemently argued that this was only inadvertent mistake which should not have gone against the assessee's claim. He relied on the cases of CIT v. Bombay Ajmeer Stores [1973] 87 ITR 613 (Mad.), Jagan Nath Pyare Lal v. CIT [1973] 92 ITR 207 (Punj. & Har.) and Dwarka Prasad Chiranjilal v. CIT [1979] 117 ITR 39 (Pat.). He submitted that there was an affidavit of Shri Kulvinder Kumar after he attained majority that he was never a partner in the said concern from the very beginning. He submitted copies of accounts of all the nine partners and submitted that there was no account of Shri Kulvinder Kumar in the books of account neither any debit credit was there nor any profit credit. Therefore, according to him, the registration was wrongly cancelled.

6. The learned departmental representative besides relying on the order of the two lower authorities, submitted that it is a strange case entirely covered by the Kerala High Court decision in the case of Malankara Timbers v. CIT [1967] 66 ITR 200, which goes against the assessee.

7. After taking into consideration the rival submissions and going through the facts on record carefully, we are unable to accept the contention of the assessee regarding grant of registration because of the single fact which we found from record that originally when the firm was started on 1-11-1978 minor was taken to be a partner. As is apparent from the execution of deed which was produced on stamp paper dated 7-3-1979 and in which date of execution was shown as 1-11-1978 and minor was not only shown to be a partner at serial No. 3 of the third part but even he signed the said deed. From this, though minor's name was struck off subsequently and also his signatures were struck off not only on the partnership deed but even on the registration Form No. 11 but it is apparent from all these happenings that it was subsequently, because the deed itself was written subsequent to 1-11-1978 though it is dated November 1978. When we peruse the reply of the assessee, we find that it was written to the Commissioner in reply of show-cause notice issued under Section 263 as under : That as regards an allegation that Kulvinder Chopra joined the firm as a partner and continued as such up to 7-3-1979 and even after 7-3-1979 till October 1979, it is respectfully submitted that Shri Kulvinder Chopra was actually incapable of joining the firm as a partner because he was a minor and attained majority only on 3-3-1981, in evidence a date of Birth Certificate enclosed) on the sole fact hereabove, it becomes crystal clear that in the deed of partnership he was conducted as partner but on the revelation of a fact that he could not become a partner that his name was scored off from the partnership deed as also his signatures from Form No. 11 from the date of very coming into being of the partnership firm.

8. When we go through the affidavit of Shri Kulvinder Kumar, we find in para 2 of the said affidavit, it is mentioned that 'I never joined the firm R.S. Lamba & Co., Yamuna Nagar, as partner though my name was mistakenly included as a partner, for which I was not legally entitled'. It is apparent that contents of the explanation filed before the Commissioner and affidavit are Contradictory. This fact is clear that originally, may be orally, when this firm came into being on 1-11-1978, Shri Kulvinder Kumar was taken to be a partner and it is apparent from the subsequent conduct when the deed in question was planted under the date 1-11-1978 on a stamp which was purchased subsequently on 7-3-1979. This is trite law so far as we are sitting in Chandigarh are concerned that partnership has to be for the whole year and deed should be executed within the accounting year. In the instant case, the partnership which came forward for registration was not for the whole year ; it was a different partnership. In support of this contention, which goes against the assessee, reliance of the learned departmental representative is correctly placed on Malankara Timbers' case (supra) in which identical position was there. Partnership in question in that case was supposed to have come into existence from 1-3-1959 by means of a deed purported to have been written up and signed by the partners on that date, though the stamp paper was purchased only on 23-3-1959. The departmental authorities refused registration of the firm for 1960-61, relevant to the accounting year 1-4-1959 to 31-3-1960. On a reference, the Kerala High Court held as under : ... as there was no material to show that the partnership was factually in existence during the whole of the accounting year and all that could be said was that the deed was executed on some date between March 23, 1959, the date on which the stamp paper was purchased and April 29, 1959, the date on which the application for registration was filed, registration was properly refused. (p. 200) It is interesting to note that this Kerala High Court's decision is based on a Full Bench judgment of the Punjab High Court in the case of Niadar Mal Jagdish Parshad v. CIT [1959] 37 ITR 349, in which their Lordships of the Punjab High Court enunciated two principles for grant of registration, viz., (a) the factual existence of the partnership during the whole of the accounting year under an oral agreement or a written instrument, (b) the existence of a written instrument during the accounting year specifying the individual shares of the partners.

On the basis of these two principles, their Lordships observed that if these requirements are satisfied then the firm has to be registered for the assessment year to which the accounting year corresponds. It is immaterial when during the accounting year the instrument is executed.

When we apply this ratio, we find that in the instant case, the firm which is seeking registration on the basis of partnership deed though executed within the accounting year was not the same, right from the beginning, i.e., from 1-11-1978 to 7-3-1979 or any date after that when the deed was executed though it is mentioned to have been executed on 1-11-1978, the firm was different. Merely because a minor could not be legally a partner, therefore, he was not a partner is beyond our comprehension. The conduct is clear and admittedly so, when we look to the explanation of the assessee, extract from which, we have placed above, that the originally minor was taken to be a partner but when they realised that he could not be, his name, signatures and other commitments were struck off. It will only be academic though we may hold action of the assessee in executing deed of partnership as on 1-11-1978 on a subsequently purchased stamp could not be fatal to the assessee's claim as it could only be an inadvertent mistake. We are rejecting the assessee's appeal on the only ground that the partnership which was orally constituted from 1-11-1978 was not the same partnership which was indicated by the duly executed partnership deed which was placed before the income-tax authorities with Form No. 11. We mainly rely on the Punjab High Court's decision in Niadar Mai Jagdish Parshad's case (supra). Reliance of the learned counsel for the assessee on Bombay Ajmeer Stores' case (supra) is misplaced and this cannot come to the rescue in the instant case of the assessee. It is only for the purpose of cutting or striking the names that the learned counsel for the assessee wanted to have assistance from this judgment in which certain papers were substituted. We are holding against the assessee quite on a different count. This case cannot be of assistance to the assessee.

9. Then the reliance on Jagan Nath Pyare Lal 's case (supra) again is misplaced. This was for the purpose that in case a deed was not signed, the assessee should have been granted an opportunity and the same could not be fatal. In the instant case, it is quite on a different count that we have rejected the assessee's claim. We have already held above that the two principles enunciated by the Punjab High Court in the case of Niadar Mai Jagdish Parshad (supra) were not fulfilled and the third case on which the learned counsel for the assessee relied on Dwarka Prasad Chiranjilal's case (supra) actually there is no case on page 3.

However, there is a case on page 1 that of Gestetner Duplicators (P.) Ltd. v. CIT [1979] 117 ITR 1 (SC) but by going through the same, we do not find if it could be of any assistance to the assessee's claim.

Mainly finding it to be a fact that originally minor was taken to be a partner and he continued to be such for sometime and terms of duly executed deed though it was within the accounting period were in contradiction of the terms of the orally constituted partnership. The action of the Commissioner is, therefore, confirmed. However, with different reasons as indicated above, which could be the conclusion from one of the findings of the Commissioner also.

10. Contentions of the assessee are rejected and in the result, the assessee's appeal is dismissed.


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