This is a reference by the Income-tax Tribunal, Madras Bench, under section 66(1) of the Indian Income-tax Act, 1922. The question referred is :
'Whether the assessee is entitled to carry forward his share of the aforesaid loss of Rs. 90,828 in the erstwhile registered firm against the profits from his sole business for the assessment year 1957-58 ?'
The assessee, Dwarakadas, was one of the two partners of a registered firm carrying on business in hessian, cloth and jute products. The partnership was dissolved on June 1, 1953. It is common ground that, after the dissolution, the assessee contain used the same business as it sole proprietor.
The partnership was working at a loss. The share of the assessee in the loss sustained by the firm as determined under section 16(1) (b) of the Indian Income-tax Act, 1922, was Rs. 76,097 for the assessment year 1953-54 and Rs. 14,731 for the assessment year 1954-55. It is the total of these two figures that is mentioned in the question referred by the Appellate Tribunal.
According to the department the registered partnership and Dwarakadas should be treated as distinct entities and the lack of identity should preclude the loss apportioned to Dwarakadas as a partner being set off against his subsequent profits as a proprietor. This is the contention that has found favor with the Appellate Tribunal. No other contention is urged before us.
There is no doubt that even a registered partnership is a taxable entity. The Finance Act of 1956 made such firms liable to income-tax though only at special rates provided in that act. The provision, however, for including the shares of the partners in the profits of the firm within the total income of those partners for the purposes of their individual assessment was retained and an element of double taxation came into the picture. The introduction of section 14(aa) into the Indian Income-tax act, 1922, afforded some relief; but, as pointed out by the Law Commission, it did not wipe out completely the element of double taxation. The recommendation of the Law Commission on the subject has not been embodied in the Income-tax Act, 1961, and the position continues as before.
The law as regards the losses suffered by a registered firm can be summed up - in the words of Kanga-as follows :
'Where a loss is incurred by a registered firm, such loss must be set off, in computing the firms total income, against its income of the same year under the same head or any other head. Any loss which cannot be so set off should be apportioned amount the partners and each partner may set off his share of the loss against his income of the same year under the same head or any other head. If the loss is not absorbed by such set-off, he may further carry forward and set off his share of the loss in accordance with the provisions of section 24(2) against his income in a subsequent year. But the firm itself has no such right to carry forward, since the loss is apportioned among the individual partners'. (The Law and Practice of Income-tax, 4th edition, volume 1, page 602).
The definition of the expression 'assessee' has also to be borne in mind. Section 2(2) of the Indian Income-tax Act, 1922, defines the expression as meaning a person by whom income-tax or any other sum of money is payable under the act and as including every person in respect of whom any proceeding under the act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him.
The converse of the case before us arose for decision before the Gujarat High Court in Sitaram Motiram Join v. Commissioner of Income-tax. That court said :
'Where an individual incurs loss in a business carried on by him as sole proprietor and a registered firm of which he is a partner takes over his business as a running business together with all its assets and liabilities, he has a right to have the loss carried forward and set off, under section 24(2) of the Indian Income-tax Act, 1922, against his share of the profits of the registered firm. The business remains the same for the purpose of section 24(2) (ii) and the identity of the business does not change by reason of the change in persons who carry on that business. The business also continues to be carried on by that individual; for, a business carried on by a firm is a business carried on by the partners of the firm and one partner is the agent of the others in carrying on that business, and when a partnership carries on a business each partner thereof carries on that business' (Head-note).
In the light of what is stated above we must hold that the identity necessary is available and that the question referred has to be answered in the affirmative and in favour of the assessee. We do so. The department will pay the costs of the assessee. Advocates fee Rs. 100.
A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (5) of the section 66 of the Indian Income-tax Act, 1922.
Questions answered in the affirmative.