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Commissioner of Income-tax Vs. Gian Chand and Co. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberIncome-tax Reference No. 34 of 1971
Judge
Reported in[1973]87ITR113(P& H)
ActsIncome Tax Act, 1961 - Sections 185
AppellantCommissioner of Income-tax
RespondentGian Chand and Co.
Appellant Advocate D.N. Awasthy and; B.S. Gupta, Advs.
Respondent Advocate D.S. Mehra and; S.S. Mahajan, Advs.
Cases ReferredJer and Co. v. Commissioner of Income
Excerpt:
.....the idea of reducing the incidence of tax were well within the legal right of the assessee. this matter should not have affected the mind of the income-tax officer as well as that of the appellate assistant commissioner in the matter of registration of the firm.1. the income-tax appellate tribunal, chandigarh bench, has referred the following question of law for our opinion :' whether, on the facts and in the circumstances of the case, the appellate tribunal was right in holding that the firm was entitled to registration under section 185 of the income-tax act, 1961 '2. a firm known and styled as messrs. gian chand & co., having five partners, obtained a licence in their separate names from the fisheries department of the punjab government for fishing in the public waters. they took another four persons as partners in the same firm. thus, the firm came to be constituted of nine partners. the income-tax officer while looking into the claim for registration went into the past history of the case and in view of the frequent changes in the.....
Judgment:

1. The Income-tax Appellate Tribunal, Chandigarh Bench, has referred the following question of law for our opinion :

' Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the firm was entitled to registration under Section 185 of the Income-tax Act, 1961 '

2. A firm known and styled as Messrs. Gian Chand & Co., having five partners, obtained a licence in their separate names from the Fisheries Department of the Punjab Government for fishing in the public waters. They took another four persons as partners in the same firm. Thus, the firm came to be constituted of nine partners. The Income-tax Officer while looking into the claim for registration went into the past history of the case and in view of the frequent changes in the constitution of the firm took the view that these changes had been employed in order to reduce the incidence of taxation. This is the only basis on which he refused registration on the ground that the firm was not genuine. The assessee preferred an appeal to the Appellate Assistant Commissioner. The said Commissioner remanded the case to the Income-tax Officer for some other enquiries. On receipt of the remand report, the Appellate Assistant Commissioner rejected the appeal. The Appellate Assistant Commissioner also proceeded on another basis, namely, that the registration of the firm was illegal, in view of Rules 7(1), 7(8), 7(9) and 7(10) oi the Punjab Fisheries Rules. This view he took on the basis of the decisions in Commissioner of Income-tax v. Benarsi Das & Co., [1962] 44 I.T.R. 835 (Punj.) Mohapatra Bhandar v. Commissioner of Income-tax, [1965] 58 I.T.R. 671 (Orissa) and Jer & Co. v. Commissioner of Income-tax, [1966] 60 I.T.R. 335 (All.). The assessee then preferred an appeal to the Income-tax Appellate Tribunal. The Tribunal came to the conclusion that the frequent changes in the constitution of the firm even if made with the idea of reducing the incidence of tax were well within the legal right of the assessee. This matter should not have affected the mind of the Income-tax Officer as well as that of the Appellate Assistant Commissioner in the matter of registration of the firm. In other words, the finding of the Income-tax Officer and the Appellate Assistant Commissioner that the firm was not genuine was reversed.

3. With regard to the finding that the partnership was unlawful and, therefore, could not be registered, the view taken by the Tribunal was that the rules on the subject did not warrant such a conclusion. There was no express prohibition so far as the sale offish is concerned. The only right under the licence was to take out fish from the public waters. In this view of the matter, the Tribunal allowed the appeal and directed that the firm be registered. At the instance of the department the Tribunal has referred the question of law already referred to, for the opinion of this court.

4. Mr. Awasthy, learned counsel for the department, rightly did not press the contention that the firm was not genuine because of the frequent changes in its constitution. The learned counsel, however, contended that the firm was unlawful and, therefore, the registration was rightly refused by the Income-tax Officer and the Appellate Assistant Commissioner. This is the only matter which we are called upon to determine.

5. The learned counsel places his reliance on the Punjab Fisheries Rules and on the decisions in Commissioner of Income-tax v. Benarsi Das & Co., Mohapatra Bhandar v. Commissioner of Income-tax and Jer & Co. v. Commissioner of Income-tax. Two of these decisions are qua liquor licences and one qua an opium licence. Their correctness has been put in jeopardy by the decision in Jer and Co. v. Commissioner of Income-tax. In fact, the decision in Jer & Co.'s case is the decision which was reversed by the Supreme Court in Jer & Co.'s case, [1971] 79 I.T.R. 546; 548 (S.C.). The precise reasoning of their Lordships may be set out for facility of reference, which is in the following terms :

'The licence does not prohibit the holder from entering into partnership by the holder of the licence: it merely provides that the licence shall not be sub-let or transferred. Since there is no prohibition against entry by the holder of the licence into a partnership the question whether the partnership was illegal does not arise. The firm was entitled on that account to registration. It is somewhat unfortunate that the attention of the Commissioner and the High Court was not invited to the form in which the licence was issued by the excise authorities. They proceeded to decide the case on the footing that Rule 322 of the Excise Manual applied. But that rule has no application here.'

6. This knocks off the bottom out of the cases relied on by the learnedcounsel for the department. So far as the Punjab Fisheries Rules areconcerned, there is no rule prohibiting entering into partnership so far asthe fishing licences are concerned. In view of the Supreme Court decision,the view of the Tribunal is unassailable.

7. For the reasons recorded above, we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the department. There will be no order as to costs.


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