1. These two applications filed under Section 256(2) of the I.T. Act, 1961, at the instance of the assessee, raise identical questions and can, therefore, be disposed of by one order.
2. D.B. Civil Income-tax Case No. 69 of 1976, M/s. Hemandass Dhanrajmal (Khari Feeder Project, Jaipur), claimed the status of a registered firm for the assessment year 1966-67. The following persons were declared to be its partners :
1. Shi Hemandass,
2. Shri Choith Ram,
3. Shri Hukmat Rai,
4. Shri Daulat Ram,
5. Shri Minohmal,
6. Shri Chaturdas.
3. The first four partners constituted the main firm, M/s. Hemandass Dhanrajmal. By order No. 71 WT (KAD 2628), dated March 10, 1965, the Superintending Engineer, Irrigation, Udaipur, gave a contract of digging work relating to Khari Feeder Aqueduct to the firm, M/s. Hemandass Dhanrajmal. The four partners of this firm, being busy with other works, took with them the fifth and sixth partners as working partners. The newly constituted partnership was to commence the work from March 20, 1965. It was to execute the contract work of Khari Feeder Project. Clause VI of the partnership deed embodies that the capital of the firm was to be provided by the main firm. Clause VIII shows that the 5th and the 6th partners were introduced as working partners. Their share in profit and loss was at 30% each. The bills were to be prepared and payment was to be received by the first four partners and the expenses required to be incurred for the execution of the work were to be paid by the partners of the main firm to partners Nos. 5 and 6 of the assessee-firm.
4. The assessee-firm applied for its registration in the prescribed form on March 30, 1965. The ITO doubted the genuineness of the firm. In that connection, he examined Minohmal and Chaturdas. Chaturdas admitted that he had been working as munim with M/s. Hemandass Dhanrajmal on a monthly salary of Rs. 35 for the last 8 or 10 years. Analysing the statements of Minohmal and Chaturdas and contradictions in their statements together with human probabilities, the ITO concluded that the newly constituted firm was not an independent firm and was controlled by the main firm. He, accordingly, refused registration to the firm.
5. On appeal, the AAC upheld the findings of the ITO. The AAC held that there were no sufficient reasons to hold that the contract was carried out by a separate and distinct entity from the main firm, M/s. Hemandass Dhanrajmal. The assessee went up in appeal to the Income-tax Appellate Tribunal, but without success. An application was made to the Tribunal for making a reference to the court under Section 256(1) of the Act of 1961 (to be referred to hereinafter as 'the Act'). The Tribunal declined to do so on the ground that no question of law was involved. The assessee now asks us to direct the Tribunal to refer the following questions of law to this court :
'(a) Whether, on the facts and in the circumstances of the case and on a proper appreciation of the evidence and material on record, the Tribunal was right in holding that the working partners were dummies/ benamies and that the firm is not entitled to registration under Section 185 ?
(b) If the answer to the first question is yes, then, whether, on the facts and in the circumstances of the case, the firm was entitled to registration ?'
6. D.B. Civil Income-tax Case No. 269 of 1975, M/s. Hemandass Dhanrajmal (Jawahar Sagar Project), had claimed the status of a registered firm for the assessment year 1968-69. The assessee's case was that the alleged firm came into existence, vide partnership deed dated March 25, 1967. The following persons were declared to be its partners :
7. The first three partners were the partners of the main firm, M/s. Hemandass Dhanrajmal. The main firm obtained a contract from the irrigation department to execute the works known as Jawahar Sagar Project. The three partners, namely, Hemandass, Hukmatrai and Daulatram took two new partners, Lekhraj and Kalidass. They were given only supervisory work over the labour employed by M/s. Hemandass Dhanrajmal on the works to be performed on Jawahar Sagar Project. Admittedly, no capital was to be invested by either Lekhraj or Kalidass. Each of them was given 25% share in the profit and loss to be incurred by the firm in execution of the work of the project. The newly introduced partners were made responsible for maintaining the accounts, make payment of the amount received from partners Nos. 1, 2 or 3 to the labour. They were also not authorised to prepare the bills and receive the payments. The assessee-firm was registered with the Registrar of Firms, Rajasthan, Jaipur, as No. 904/67 on June 26, 1967. The assessee-firm then applied for registration of the firm under Section 185 of the Income-tax Act, 1961. The ITO doubted the genuineness of the partnership firm. He recorded the statements of Lekhraj and Kalidass (two newly introduced partners) on July 26, 1971. Hemandass was also examined on the same date. The ITO came to the conclusion that neither Lekhraj nor Kalidass had any earlier experience of technical nature or of administrative nature in irrigation contract work. They were simply performing the functions of a mistry. No capital was invested by them. They could not even read the partnership deed. They did not know whether M/s. Hemandass Dhanrajmal maintained any accounts or not. They had no knowledge about the account books and from their statements it appears that no account books were maintained by them. He further held that no separate bank account for the concern, M/s. Hemandass Dhanrajmal (Jawahar Sagar Project) was kept. The irrigation department had given the contract to M/s. Hemandass Dhanrajmal and there was no sanction obtained by the so-called newly constituted firm for getting the contract transferred in its name. On the basis of the above findings and other facts, noted by him in the assessment order, learned ITO, Special Ward II, Jaipur, rejected the application for registration, filed by M/s. Hemandass Dhanrajmal (Jawahar Sagar Project).
8. On appeal, the AAC, A-Range, after examining the record afresh, affirmed the findings of the ITO. He further observed that in the past also M/s. Hemandass Dhanrajmal had been following exactly the same modus operandi in the assessment year 1965-66. The assessee constituted a firm in the name of M/s. Hemandass Dhanrajmal (Birach River Project) and in the assessment year 1966-67, it constituted a firm in the name of M/s. Hemandass Dhanrajmal, although the aforesaid firm was similarly found to be non-genuine and the income was added to the main firm. He also held that the introduction 'of two dummy partners, who were neither allowed to operate the accounts nor were required to contribute any capital and the registration regarding sub-letting of the work, when considered with other proved circumstances of the case, clearly indicated that the firm was a bogus one. It was non-genuine and was only a branch of the main firm created with a view to divert its profits. With these observations the appeal was dismissed. The assessee went up in appeal before the Income-tax Appellate Tribunal, Jaipur Bench, but without success. An application was moved before the Tribunal for making a reference to this court under Section 256(1) of the Act. The Tribunal held that in the appellate order the details based on sufficient material were given and the finding stood well supported by documentary as well as oral evidence and that no question of law arose from the order of the Tribunal. It, accordingly, declined to refer any question to this court.
9. Aggrieved by the order of the Tribunal, the assessee has come to this court and wants us to direct the Tribunal to state the case and refer the following questions :
'(a) Whether there was any positive material with the Tribunal on the basis of which the Tribunal can legally hold that the assessee partnership was not formed, did not exist, did not carry on the contract business and was non-genuine ?
(b) Whether, on the facts and in the circumstances of the case, the Tribunal was right in refusing to grant the claim of registration ?'
10. Learned counsel appearing for the assessee and the revenue agree that the questions raised in both the reference petitions are identical and, therefore, these reference petitions should be disposed of by a common order.
11. Learned counsel for the assessee urged that the ITO as well as the Tribunal had based their findings on irrelevant considerations. The evidence produced in both the cases clearly proves : (i) the formation of a partnership ; (ii) the execution of partnership deed ; (iii) the execution of the contract work by all the partners and particularly the newly added partners in both the firms ; and (iv) the distribution of their respective share of profits to all the partners. The Tribunal ignored the convincing evidence, even though there was absence of positive material, proving that no genuine partnership was formed. According to the learned counsel, questions raised by the assessee are questions of law and that the Tribunal went wrong in not stating the case and referring the questions for the opinion of this court.
12. Learned counsel for the revenue contended that no new partnership was formed in either of the two cases. The entire capital came from the original firm, M/s. Hemandass Dhanrajmal. It was wholly financed by the original firm. The bills were also collected by the partners of the original firm. The ITO examined the newly introduced partners. He considered the conduct of the parties and keeping in view the fact that no substantial work was required to be done by the new partners and the acts performed by them could very well be performed by a clerk. Thus, the I.T. authorities arrived at the correct and actual conclusion that the alleged partnership in both the cases were not genuine.
13. There appears to be considerable force in the argument of the learned counsel for the revenue that the Tribunal's conclusion that the two partners in both the cases had been brought into existence by the assessee-firm for concealing their profits was not devoid of substance. The profits, earned and shown in the names of the newly constituted firm, were in fact earned by the original firm. Thus, the point for decision is whether there arises from the order of the Tribunal any question which can be the subject of reference under Section 256(1) of the Act. Under that section, it is only a question of law that can be referred to for the opinion of the court. In our view, the question whether a person is a partner in a firm or whether a partnership is a genuine one is a question of fact to be determined in the circumstances and evidence in each case. Reference in this connection may be made to Thota Komarayya Somayya, a firm v. CEPT, AIR 1956 Hyd 87 CIT v. Juggilal Kamalapat : 63ITR292(SC) Bhaichand Amoluk & Co. v. CIT : 44ITR511(SC) Ladhu Ram Taparia v. CIT : 44ITR521(SC) and R.S. Balasubmmania Mudaliar v. CIT : 22ITR370(Mad) .
14. A question of fact is erroneous in law only if it is not supported by any evidence or if it is unreasonable and perverse. The determination of the Tribunal in the present two cases being one of fact, it is open to review by this court only on the ground that it is not supported by any evidence or that it is perverse. The assessee has understood this position correctly and, therefore, learned counsel appearing for the assessee urged that the findings of the Tribunal were based on no evidence. A perusal of the record and the details of the arguments advanced before us clearly reveal that in fact what the learned counsel for the assessee wants to urge is that the conclusions drawn by the Tribunal from the facts found by it were unsound and erroneous. Learned counsel has taken us through the statements of the partners and the other facts and taking them one by one has contended that the facts were susceptible of inferences other than those drawn by the Tribunal. He also offered explanation for each fact in order to make them consistent with the inferences which the learned counsel wanted to draw. Ultimately, the arguments boiled down to the position that the conclusions reached by the Tribunal were not justified. This clearly is an erroneous approach to the whole question. The Tribunal has dealt with seriatim the points so raised, the correctness of which has not been questioned by the learned counsel for the assessee. When a conclusion has been reached on an appreciation of a number of facts, established by evidence, whether that is sound or not, must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts put together.
15. It cannot be said that there is no legal evidence in support of the findings of the Tribunal that the newly introduced partners of the intermediary firm were new to the business and that they had not contributed any share. Learned counsel for the assessee contends that no significance could be attached to this, as the newly introduced partners had been working either as employees or had worked as small contractors on the site in the financial year 1961-62. This fact, relied upon by the learned counsel for the assessee, is not such which can make the evidence believed by the Tribunal as irrelevant or inadmissible. It only affects the weight of the evidence. The Tribunal has observed that the assignment of the contract by M/s. Hemandass Dhanrajmal to the assessee-firm had not been intimated to the Chief Engineer, nor his prior permission had been obtained.
16. Clause 21 of the tender form 'C' clearly stipulated that no sub-contract could be given by the contractor without the specific written approval of the Chief Engineer. It was not disputed before the Tribunal that the payment with regard to the execution of the contracts were received directly by M/s. Hemandass Dhanrajmal, the main firm. The Tribunal also held that though none of the partners invested any capital and the work which they performed could be performed by an ordinary clerk, yet they were given the major portion of the profit, which was contrary to the common course of human conduct. In their statements, the newly introduced partners showed their ignorance about the exact share of profit or loss which accrued to them during the accounting period corresponding to the assessment years. No separate bank account of the assessee-firm was maintained. None of these facts can be said to be irrelevant. The Tribunal also held that the modus operandi of the main firm was to introduce two more partners each year and the profits were not actually paid to them.
17. From the perusal of Section 4 of the Partnership Act, it becomes absolutely clear that a partnership is not necessarily created by an agreement in writing. It could be created even by an oral agreement or an agreement could be inferred from the conduct of the parties. Therefore, apart from a written agreement, the actual conduct or the intention of the parties is important in deciding questions of partnership. But intention is often incapable of proof and has to be only inferred from the circumstances of a particular case. The taxing authorities are often confronted with the tendency on the part of the assessee to create a new and different partnership by introducing servants and close relatives as partners. They might have been given the status of general partners, but their rights and powers are so restricted that it would be difficult to hold them as real partners. The tendency of the real partners will be to impose restrictions in the matter of drawing on bank accounts and entering into business contracts, control of establishment, etc. Such a position holds good in the case in hand.
18. Now, the question remains whether the evidence on which the Tribunal relied is such as it cannot be termed to be admissible in support of its conclusion. Our answer to this is in the negative. The other circumstances, relied upon by the Tribunal, are also of the same pattern and none of them can be said to be irrelevant or inadmissible. In sum, we are unable to hold that there is no legal admissible evidence on record or circumstances to support the conclusion arrived at by the Tribunal.
19. There are well accepted notions that questions of law and of fact fall as antithesis to each other with spheres, distinct and separate. When the Legislature in its wisdom has restricted the power of the court to review the decision of the Tribunals to questions of law only, it obviously intended to sort out questions of fact from its jurisdiction. This court, in exercise of its advisory jurisdiction, does not exercise the jurisdiction of an appellate court. When there is a question of fact to be determined, it, would usually be necessary first to decide disputed facts of subsidiary or evidentiary character and the ultimate conclusion will depend on an appreciation of those facts. It cannot be said that a conclusion of fact, pure and simple, ceases to be that when it is in turn a deduction from other facts as in the case on hand.
20. As already held above, it cannot be said to be a case of no evidence. In our opinion, therefore, no question of law arises in the circumstances of the two cases and the applications filed under Section 256(2) of the I.T. Act, 1961, are rejected. There will be no order as to costs.