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Commissioner of Income-tax Vs. Sukhlal Sohanlal - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtRajasthan High Court
Decided On
Case NumberD.B. Income-tax Reference No. 34 of 1983
Judge
Reported in(1985)47CTR(Raj)209; [1985]153ITR221(Raj); 1985WLN(UC)197
ActsIncome Tax Act, 1961 - Sections 187(2); Taxation Law (Amendment) Act, 1984
AppellantCommissioner of Income-tax
RespondentSukhlal Sohanlal
Appellant Advocate J.P. Joshi, Adv.
Respondent Advocate Vineet Kothari, Adv.
Excerpt:
.....tribunal that there should be two separate assessments: one anterior to the death of one of the partners mohanlal and another posterior to the death of the said partner, appears to be legally justified.;reference answered - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen..........april 1, 1975 : 'provided that nothing contained in clause (a) shall apply to a case where the firm is dissolved on the death of any of its partners.' 5. it may be pointed out that the present case relates to the assessment year 1978-79 and as the amendment introduced in section 187 of the i.t. act, 1961, has been made effective from april 1, 1975, the same shall be attracted to the present case. thus, even, according to the amended provision of section 187(2) of the i.t. act, 1961, the view taken by the tribunal that there should be two separate assessments, one anterior to the death of one of the partners, mohanlal, and another, posterior to the death of the said partner, appears to be legally justified.6. we, therefore, answer the question in the affirmative. in the circumstances.....
Judgment:

Dwarka Prasad, J.

1. The question which was referred by the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur (for short 'the Tribunal'), to this court, vide its order dated June 29, 1983, was :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the firm stood dissolved on the death of Shri Mohanlal (partner) on February 6, 1977, and, therefore, two separateassessments should have been made for the two periods--anterior to the death and posterior to the death of the partner ?'

2. The aforesaid question arose out of the order passed by the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur, dated November 25, 1982. The Tribunal, vide its order dated November 25, 1982, took the view that the anterior partnership firm stood dissolved on the death of Mohanlal, one of the partners, on February 6, 1977, and that after the death of Mohanlal, a new firm came into existence from February 14, 1977, in accordance with the partnership deed dated February 17, 1977. The Tribunal differed from the view taken by the Punjab and Haryana High Court in Nandlal Sohanlal v. CIT and followed the view taken by the Andhra Pradesh High Court in Addl. CIT v. Vinayaka Cinema : [1977]110ITR468(AP) .

3. It may be observed that this court has taken the same view as was taken by the Andhra Pradesh High Court, viz., that the earlier firm stands dissolved on the death of any of its partners and if there is a fresh partnership deed, a new firm comes into existence and that there should be two separate assessment proceedings, in respect of the old firm and the new firm, in four decisions, namely, Add. CIT v. Moosa Bhoy Amin , CIT v. Hind Agencies , Addl. CIT v. Emery Stone Mfg. Co. (D.B. I.T. Reference No. 4 of 1974--5-12-84 ), Swana and Co. v. CIT (D.B. I.T. Reference No. 5 of 1977--11-1-85 ). In the last mentioned two cases, one of us (Hon'ble S. K. Mal Lodha J.) was a party. We are in agreement with the view taken in the four decisions of this court cited above.

4. It may not be out of place to mention here that the decisions of this court and other High Courts taking the same view have been given recognition by the Legislature by amending the provisions of Section 187 of the I.T. Act, 1961. Section 33 of the Taxation Laws (Amendment) Act, 1984, added the following proviso to Sub-section (2) of Section 187 of the I.T. Act, 1961, with retrospective effect from April 1, 1975 :

'Provided that nothing contained in Clause (a) shall apply to a case where the firm is dissolved on the death of any of its partners.'

5. It may be pointed out that the present case relates to the assessment year 1978-79 and as the amendment introduced in Section 187 of the I.T. Act, 1961, has been made effective from April 1, 1975, the same shall be attracted to the present case. Thus, even, according to the amended provision of Section 187(2) of the I.T. Act, 1961, the view taken by the Tribunal that there should be two separate assessments, one anterior to the death of one of the partners, Mohanlal, and another, posterior to the death of the said partner, appears to be legally justified.

6. We, therefore, answer the question in the affirmative. In the circumstances of the case, the parties are left to bear their own costs.


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