Skip to content


Halima Fancy Stores Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case No. 268 of 1969 (Reference No. 87 of 1969)
Judge
Reported in[1976]104ITR190(Mad)
ActsIncome Tax Act, 1961 - Sections 2(23), 139(5) and 184(7); Partnership Act
AppellantHalima Fancy Stores
RespondentCommissioner of Income-tax
Appellant AdvocateS.V. Subramaniam, Adv. for ;Subbaraya Iyer, Sethuraman and Padmanabhan
Respondent AdvocateJ. Jayaraman, Adv.
Excerpt:
direct taxation - registration - sections 2 (23), 139 (5) and 184 (7) of income-tax act, 1961 and partnership act - whether assessee firm entitled to benefit of registration for assessment year 1965-66 - intention of parliament to give effect to registration in subsequent year also if no change in constitution of firm or shares of partners - in case of omission or wrong statement in return assessee entitled to furnish revised return - in present case assessee furnished duplicate of original return and not revised return - assessee not entitled to continued effect of registration for 1965-66. - - if the proviso to section 184(7) is satisfied by law the registration originally granted was given effect to for the subsequent assessment year as well......: 'minor admitted to the benefits of partnership'. otherwise, the particulars furnished in the return filed on july 29, 1965, and the one filed on march 2, 1966, are identical. the income-tax officer ignored the declaration in form 12 filed on march 2, 1966, and held that the declaration was not filed along with the return dated july 29, 1965, and that, therefore, there was no continuation of the registration under section 184(7). he, accordingly, assessed the firm as an unregistered partnership. on a further appeal, the appellate assistant commissioner took the view that the benefit of registration was rightly refused by the income-tax officer.2. the contention of the assessee before the, tribunal was that since the assessee had filed a declaration in form 12 along with the return.....
Judgment:

Ramaswami, J.

1. The assessee, a firm of partnership carrying on business in fancy and general goods under the name and style of 'Halima Fancy Stores', was constituted by an instrument of partnership dated April 28, 1962, and was carrying on business from April 1, 1962. The partners of the firm were Amina Bivi, N. Hussain and K. A. Sulaiman with one Halima Begum, a minor, admitted to the benefits of the partnership. The firm was registered under Section 184 for the assessment year 1963-64 and the registration was continued for 1964-65. A fresh deed of partnership came to be executed on September 3, 1964, during the previous year ended March 31, 1965, relevant to the assessment year 1965-66. Under this deed, Halima Begum was described as aged 19 years and was taken as a full-fledged partner. It was stated in this deed that she attained the age of majority on the expiry of March 31. 1964, and has been equated as a full-fledged partner from April 1, 1964. The firm also filed an application on January 20, 1965, in Form 11 for fresh registration for the assessment year 1965-66 under Section 184(1). The return for the assessment year 1965-66, corresponding to the year ended March 31, 1965d, was filed on July 29, 1965, declaring a total income of Rs. 66,870.64 and showing the names of partners and the extent of the share held by each of them in Part III of the return. Halima Begum's name also finds a place in the names of partners and her interest in the partnership was shown as two annas share. In the course of the assessment proceedings, the Income-tax Officer called upon the assessee to produce proof regarding the age of Halima Begum. The birth extract of the Corporation of Madras produced by the assessee showed the date of birth as August 31, 1947, and the school register showed her date of birth as March 10, 1950. The Income-tax Officer, therefore, considered that Halima Begum had not attained the ageof majority on September 3, 1964, even on the basis of the birth extract of the Madras Corporation. Thereafter, the assessee filed another return on March 2, 1966, with a declaration bearing the same date in Form 12 for the continuation of the registration of the firm for the assessment year 1965-66 under Section 184(7) of the Act. In this return, as against the name of Halima Begum in the column ' Name of each partner ' in Part III of the form, the following words are added : 'minor admitted to the benefits of partnership'. Otherwise, the particulars furnished in the return filed on July 29, 1965, and the one filed on March 2, 1966, are identical. The Income-tax Officer ignored the declaration in Form 12 filed on March 2, 1966, and held that the declaration was not filed along with the return dated July 29, 1965, and that, therefore, there was no continuation of the registration under Section 184(7). He, accordingly, assessed the firm as an unregistered partnership. On a further appeal, the Appellate Assistant Commissioner took the view that the benefit of registration was rightly refused by the Income-tax Officer.

2. The contention of the assessee before the, Tribunal was that since the assessee had filed a declaration in Form 12 along with the return submitted on March 2, 1966, it shall be deemed to be sufficient compliance with the proviso to Section 184(7) and that it was entitled to file a revised return as the original return was defective, in that Halima Begum was not shown as a minor. The Tribunal held that the original return filed on July 29, 1965, was a valid return and contained all the particulars required and the omission to include the description ' Minor admitted to the benefits of partnership ' against the name of Halima Begum in the return did not make the return in any way defective and, therefore, the return filed on March 2, 1966, could not be termed a revised return. Since the declaration required under Section 184(7) was not filed along with the return of July 29, 1965, the assessee was not entitled to the benefits of continuation of the registration for the assessment year 1965-66, At the instance of the assessee the following question has been referred :

'Whether, on the facts and in the circumstances of the case, the assessee-firm is entitled to the benefit of registration for the assessment year 1965-66?'

3. In this reference, the learned counsel for the assessee submitted that a continuation of the registration is automatic in the absence of a change in the constitution of the firm or the shares of the partners. The filing of a declaration, required under the proviso to Section 184(7), does not serve any purpose other than that of a piece of evidence of no change in the constitution of the firm or the shares of partners. If, in fact, there was no change in the constitution of the firm or the shares of the partners, even without a declaration the original registration shall have effect in thesubsequent assessment year. He also contended that, in any case, the filing of the declaration at any time before the actual assessment, would be enough and the provision requiring it to be filed alone with the return of income, could not be held as mandatory.

4. Section 184(1) enables a firm, constituted under an instrument of partnership, to file an application for registration. Clauses (3), (4) and (5) set out the manner of filing the application and the person to whom it has to be filed. On receipt of the application, the Income-tax Officer, under Section 185, was required to enquire into the genuineness of the firm and its constitution and if he is satified that there is or was, during the previous year, in existence a genuine firm, pass an order in writing registering the firm for the assessment year. Where the firm is thus registered the Income-tax Officer shall record a certificate on the instrument of partnership or on the certified copy submitted in lieu of the original, as the case may be, to the effect that the firm has been registered under the Act for that assessment year. Section 184(7), which deals with the effect of such registration in the subsequent assessment years, is in the following terms :

' (7) Where registration is granted to any firm for any assessment year, it shall have effect for every subsequent assessment year :

Provided that-

(i) there is no change in the constitution of the firm or the shares of the partners as evidenced by the instrument of partnership on the basis of which the registration was granted ; and

(ii) the firm furnishes, along with its return of income for the assessment year concerned, a declaration to that effect, in the prescribed form and verified in the prescribed manner. '

5. It is seen from this clause that if there is no reconstitution and a declaration is filed by the firm to that effect, the registration granted already shall have effect for the subsequent assessment year. The declaration is to be filed in Form 12. The contents of the Form also show that the Form is required only to state that there has been no change in the constitution of the firm or the shares of the partners, and it does not contain any request for renewal of the registration or continuation of the registration. Clause (4) of Section 185 also only requires the Income-tax Officer, where a declaration under Section 184(7) is furnished, to record a certificate on the instrument of partnership to the effect that the registration is continued for the relevant subsequent assessment year. These provisions show that there was no need for filing an application for continuation or renewal of the registration and the Income-tax Officer makes no order of continuation or renewal. If the proviso to Section 184(7) is satisfied by law the registration originally granted was given effect to for the subsequent assessment year as well. The intention of Parliament was to give effect to the registration in the subsequent year also if there was no change in the constitution of the firm or the shares of the partners, and, therefore, the factum of change or no change in the constitution of the firm or the shares of partners is only relevant for the law to operate. The declaration, as such, does not extend the effect of the registration. Even so when Parliament had imposed that condition for the law to operate, we cannot refrain from giving effect to it merely on the ground that in effect there was no change in the constitution of the firm or the shares of partners. It might be that the declaration is only an evidence that there was no change in the constitution of the firm. But, since the giving effect to the registration for the subsequent year is conditioned upon such filing in Section 184(7) though, in fact, there is no charge in the constitution of the firm or the shares of partners, unless such a declaration is filed, the benefit of continued effect of the registration could not be given. We are also unable to agree with the learned counsel for the assessee that he might file a declaration at any time before the assessment and the provision requiring the declaration to be filed along with the return of income was not mandatory. The section requires the declaration to be filed along with the return of income, It has been held in some of the decided cases, with reference to the application for registration, that it shall be tiled before the end of the previous year and any delay in filing that application, even if it was before the assessment, could not be treated as valid application. Normally, a firm is to be assessed on the basis of the total Income of the firm, as contained in Sections 143 and 144. Section 184 enabled a firm to get itself registered, and under Section 182, in the case of a registered film, it will have to be assessed in the manner provided in that section notwithstanding anything contained in Sections 143 and 144. The assessment of a firm as a registered one is a beneficial provision and if a firm desires to have that benefit, it will have to satisfy the conditions for registration. The registration has a bearing on the tax effect and, therefore, any condition relating to the filing of the declaration along with the return, could not be treated merely as directory. We are of the view that a declaration will have to be filed along with the return of income and any declaration filed subsequent to the return could not be treated as in accordance with the provisions of law. It was next contended by the learned counsel for the assessee that the original return filed on July 29, 1965, was defective in that it shewed Halirna Begum as a major and a full-fledged partner, while she was only a minor admitted to the benefits of the partnership, and, therefore, he had to file a revised return showing her as a minor admitted to the benefits of the partnership. Such a return was filed on March 23, 1966. The return filed of March 2, 1956, is thus the valid return and since the declarationhad boon filed along with that return, he has Complied with the provisions of Section 184(7). As already poiraed out, except fur the addition of the words 'minor admitted to the benefits of partnership', all the other particulars given in the return filed on July 29, 1965, and the one filed on March 2, 1966, were identical. It is true, if the assessed discovers any omission or any wrong statement in the return furnished by him, he would be entitled to furnish a revised return at any time before the assessment is made and it is the revised return that would have to be dealt with by the Income-tax Officer. This right is conferred on the assessee under Section 139(5). But the omission or wrong statement, referred to in that provision, in our opinion, must have a bearing on the assessment of the firm itself and it is not that every incorrect statement that would enable the assessee to file a revised return. In this case, we could not treat the return filed on March 2, 1966, as a revised return which had to be considered by the Income-tax Officer, It is merely a duplication of the original return and not a revised return. The income returned is the same, the names of the partners are the same and the shares of partners are also the same. Further, though the description of Halima Begum as a minor may be considered as a correct statement, a minor admitted to the benefits of partnership is considered as a partner both in the Partnership Act and in the definition given in Section 2(23) of the Income-tax Act. Therefore, the original return filed is the relevant return, along with which the declaration ought to have been filed. Since that was not done, the assessee was not entitled to the continued effect of the registration, for 1965-66. We, accordingly, answer the reference in the negative and against the assessee. The revenue will be entitled to its costs. Counsel's fee Rs. 250.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //