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Ranu Bros. Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Income-tax Case Nos. 199 of 1975, 12 and of 1978
Judge
Reported in(1979)10CTR(Raj)140; [1979]117ITR468(Raj)
ActsIncome Tax Act, 1961 - Sections 256(2)
AppellantRanu Bros.
RespondentCommissioner of Income-tax
Appellant Advocate K.S. Kaji and; G.S. Bafna, Advs.
Respondent Advocate L.R. Mehta, Adv.
Cases ReferredOmar Salay Mohamed Sail v. Commissioner of Income
Excerpt:
- .....requiring the tribunal to draw up a statement of the case and to refer the same to this court. the learned tribunal, however, by its order dated 28th november, 1974, rejected the reference application of the petitioner and hence the petitioner has submitted an application under section 256(2) of the i.t. act forgiving a direction to the tribunal todraw up a statement of the case and to raise and refer the questions of law mentioned in the petition. 3. in the case no. 12/1978, the facts are almost identical with a slight variation that shri rahul bhargava, one of the partners, had attained majority and a fresh deed of partnership was drawn up on 22nd october, 1968. an application submitted for registration of the partnership firm constituted by a deed of partnership dated 22nd october,.....
Judgment:

N.M. Kasliwal, J.

1. We propose to dispose of all the three above petitions by one single order as the parties in all the three cases are same and relate to matters under Section 256(2) of the I.T. Act, 1961, for the assessment years 1969-70, 1970-71 and 1971-72 and the points arising in all the above cases are almost identical.

2. Briefly stated the facts of the Income-tax Case No. 199/1975 are that the petitioner moved an application under Section 185 of the I.T. Act for registration of a partnership firm consisting of Shri R.K. Bhargava, Shri Raja Ram and Shri Rahul. The partnership was alleged to have been constituted through a partnership deed dated 3rd November, 1967. Shri Rahul at this time was admittedly a minor. The ITO by his order dated 2nd March, 1972, refused registration, holding that the said partnership was not a genuine one. Being aggrieved by the said order, the petitioner preferred an appeal to the AAC, who, by his order dated 15th June, 1972, set aside the order of the ITO and held that the partnership was a genuine one. The department preferred an appeal to the Tribunal which allowed the appeal filed by the department, vide its order dated 26th November, 1973, and upheld the order of the ITO. The petitioner submitted an application under Section 256(1) of the I.T. Act requiring the Tribunal to draw up a statement of the case and to refer the same to this court. The learned Tribunal, however, by its order dated 28th November, 1974, rejected the reference application of the petitioner and hence the petitioner has submitted an application under Section 256(2) of the I.T. Act forgiving a direction to the Tribunal todraw up a statement of the case and to raise and refer the questions of law mentioned in the petition.

3. In the Case No. 12/1978, the facts are almost identical with a slight variation that Shri Rahul Bhargava, one of the partners, had attained majority and a fresh deed of partnership was drawn up on 22nd October, 1968. An application submitted for registration of the partnership firm constituted by a deed of partnership dated 22nd October, 1968, for the assessment year 1970-71 was dismissed by the ITO; the order of the ITO was set aside by the AAC and, on an appeal filed by the department, the Tribunal set aside the order of the AAC and the application for making a reference was also rejected by the Tribunal.

4. In the Petition No. 13/78, which relates to the assessment year 1971-72, the petitioner submitted an application for continuation of registration of the partnership firm. The ITO held that the previous applications for registration having already been refused, there was no question of continuation of registration and assessed the petitioner as an individual. The petitioner filed two appeals before the AAC, one challenging the refusal of registration and the other challenging the validity of the assessment. The AAC held that the petitioner was entitled to registration, following his order for the earlier assessment year. However, the other appeal was dismissed by him, The department filed a second appeal to the Tribunal against the order of the AAC by which he had granted continuation of registration to the petitioner-firm. The petitioner also filed cross-objections on the question of the validity of the assessment. The Tribunal allowed the appeal filed by the department on the question of registration and dismissed the cross-objections filed by the petitioner. The reference application filed by the petitioner under Section 256(1) of the I.T. Act was also dismissed.

5. The admitted facts of the case are that one Shri R. K. Bhargava was carrying on business for some years as a sole proprietor, under the name and style of Messrs. Ranu Bros. The said Bhargava was carrying on business as a contractor and as such he was registered as a contractor with various Government departments. One Raja Ram was working as an employee of Shri R.K. Bhargava. A partnership firm was alleged to have been constituted by a partnership deed dated 3rd November, 1967, in which the shares of the partners in profits and losses were shown as under :

In profits :1.Shri R. K. Bhargava50%2.Shri Raja Ram30%3.Shri Rahul Bhargava20%(The minor admitted to the Benefits of the partnership).In losses :1.Shri R. K. Bhargava65%2.Shri Raja Ram35%

6. On 22nd October, 1968, another partnership deed was executed in which the shares in the profits and losses were shown as follows:

1.Shri R. K. Bhargava50%2.Shri Raja Ram30%3.Shri Kabul Bhargava20%

7. The name and style of the business in the partnership was also carried on in the same name, i.e., 'M/s. Ranu Bros.'

8. The learned Tribunal after considering the entire facts and circumstances including the surrounding circumstances at the time when the partnership agreement was entered into, the manner in which the accounts of the business were kept, the right to receive profits and liabilities, the right to control the business and various other factors relevant with regard to the question whether a genuine partnership had come into existence or not, held that it was not a case of genuine partnership. Learned counsel appearing for the petitioner has vehemently contended that Section 4 of the Partnership Act defines partnership and Section 6 determines that in holding whether a group of persons is or is not a firm, regard shall be had to the real relation between the parties as shown by all relevant facts taken together. His contention is that what facts and circumstances in a given case constituted a firm is a question of law and this court should direct the Tribunal to draw up a statement of case. Learned counsel further contended that the inferences drawn by the Tribunal are based on pure conjectures. There was no material for coming to the conclusion that the firm was not a genuine one. The conclusions are also based on irrelevant and immaterial considerations. Learned counsel placed reliance on Umacharan Shaw & Bros. v. CIT : [1959]37ITR271(SC) CIT v. Prakash Ram Gupta : [1969]72ITR366(Patna) T.V. Mathew and Sons. v. Commr. of Agrl. I.T. : [1977]108ITR47(Ker) CIT v. Maskara Tea Estate [1977] 108 ITR 70 Jammula Venkataswawy & Sons v. CIT : [1974]96ITR625(Orissa) and K.D. Kamath & Co. v. CIT : [1971]82ITR680(SC) .

9. On the other hand, the learned counsel for the respondent contended that the question whether a partnership was a genuine one or not was purely a question of fact and the learned Tribunal has given detailed reasons for arriving at this conclusion which is based on the correct appreciation of oral and documentary evidence and thus no question of law arises. The finding of the learned Tribunal is not based on any conjectures but is based on material placed on the record of the case. Reliance is placed on Bhaichand Amoluk and Co. v. CIT : [1962]44ITR511(SC) .

10. We have given our careful consideration to the arguments advanced by both the learned counsel for the parties and have gone through the entire record of the case. We have examined the case in the light of the observations given by their Lordships of the Supreme Court in Bhaichand Amoluk's case : [1962]44ITR511(SC) (which was extracted by their Lordships of the Supreme Court from Gheesta's case : [1961]41ITR135(SC) ):

''We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner of Income-tax : [1954]26ITR736(SC) or Omar Salay Mohamed Sail v. Commissioner of Income-tax : [1959]37ITR151(SC) . We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions'.'

11. The Tribunal has observed :

'The learned counsel for the assessee conceded before us that the facts stated in the order of the Income-tax Officer are not in dispute.'

12. Thereafter the Tribunal has arrived at the conclusion that no contract was taken in the name of the so-called partnership firm, no separate bank account in the name of the firm in question in the year of account and it remained in the same name of Messrs. Ranu Bros, of which Shri R.K. Bhargava was the sole proprietor. The assessee-firm did not obtain any separate shop or premises for carrying out the business of the so-called firm. The entire labour personnel remained the same. From the account books and other material on record it was clear that the books alleged to have been transferred by Messrs. Ranu Bros. (Individual) to Messrs. Ranu Bros. (Contractors) were also not done on the inspection of the firm. Though it was alleged that Raja Ram invested a sum of Rs. 1,000 in the partnership as his capital but no evidence worth the name was produced beforethe ITO that Raja Ram with a meagre salary of Rs. 150 was able to save the said amount. During the year of account the total withdrawals of Raja Ram for meeting household expenses were only to the tune of Rs. 1,795, i.e., about Rs. 150 per month, though according to the books the share of profit in the name of Raja Ram was credited to the extent of Rs. 15,000. Learned Tribunal has further held that after having gone through the entire statement of Raja Ram it was also clear that he did not have really the knowledge of the partnership business.

13. It may to some extent be correct as contended by the learned counsel for the petitioner that each one of these circumstances taken into account separately may not be sufficient to hold that the partnership was not a genuine one, but when all the facts and circumstances existing at the inception of the partnership and facts immediately leading thereafter, are taken into account, there remains no manner of doubt that the Tribunal has arrived at a correct conclusion. In any view of the matter, we do not find that any question of law arises from the order of the Tribunal.

14. In the result, the petitions are dismissed with no order as to costs.


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