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Commissioner of Income-tax Vs. East India Lamp and Components - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberIncome-tax Reference No. 351 of 1977
Judge
Reported in(1981)21CTR(Cal)278,[1981]129ITR426(Cal)
ActsIncome Tax Act, 1961 - Section 184(3) and 184(8); ;Income Tax Act, 1922 - Section 26A;
AppellantCommissioner of Income-tax
RespondentEast India Lamp and Components
Appellant AdvocateB.K. Bagchi and ;A.N. Bhattacharji, Advs.
Respondent AdvocateD. Pal and ;J.C. Shah, Advs.
Cases ReferredJaver Chand v. Pukhraj Surana
Excerpt:
- sudhindra mohan guha, j.1. this refernce under section 256(1) of the i.t. act, 1961, arises out of an application made by the commissioner of income-tax, west bengal-xii, calcutta. the assessment relates to the year 1971-72, and.the accounting year ended on 30th june, 1970. the assessee-firm came into existence by a partnership deed dated 20th june, 1954, and at that time it had four limited companies as its partners, viz., (1) philips electrical india ltd. (hereinafter referred to as 'philips', (2) associated electrical industries (india) ltd. (hereinafter referred to as ' aei'), (3) general electric company of india ltd. (hereinafter referred to as ' gec ') and (4) siemens bros. & co. the firm was registered for and from the assessment year 1955-56. by an agreement dated may 5, 1959, it.....
Judgment:

Sudhindra Mohan Guha, J.

1. This refernce under Section 256(1) of the I.T. Act, 1961, arises out of an application made by the Commissioner of Income-tax, West Bengal-XII, Calcutta. The assessment relates to the year 1971-72, and.the accounting year ended on 30th June, 1970. The assessee-firm came into existence by a partnership deed dated 20th June, 1954, and at that time it had four limited companies as its partners, viz., (1) Philips Electrical India Ltd. (hereinafter referred to as 'Philips', (2) Associated Electrical Industries (India) Ltd. (hereinafter referred to as ' AEI'), (3) General Electric Company of India Ltd. (hereinafter referred to as ' GEC ') and (4) Siemens Bros. & Co. The firm was registered for and from the assessment year 1955-56. By an agreement dated May 5, 1959, it was decided that the share of M/s. Siemens Bros. & Co. should be transferred to the AEI and the other partners had no objection to such transfer. Therefore, with effect from May 5, 1959, only three partners remained in the firm, viz.. Philips, AEI and GEC. By virtue of an order of the High Court dated August 18, 1969, the AEI merged with the GEC with effect from 20th November, 1969. From the date of the merger only two partners remained, viz., Philips and the GEC, in the firm. There was an exchange of letters in December, 1969, as a result of which the revised profit-sharing proportions between Philips and GEC were clearly spelt out in writing. The firm initially did not file an application for registration before the end of the relevant accounting year. It was later on advised that the merger of the two partners meant, in effect, a change in the constitution of the firm within the meaning of Section 184(8) and that it should file an application in Form No. 11A which it did on 30th March, 1971, along with a letter mentioning that the fresh application for registration had been filed on the advice that there might have been a change in the constitution of the firm under Section 184(8) on the merger of the two partners as stated above.

2. The ITO refused registration to the firm,, firstly on the ground that no fresh deed of partnership was executed and there was a multiplicity of documents. Secondly, an application for registration was filed beyond the end of the accounting year and the assessee had no valid explanation to offer for the delay.

3. Against the order of refusal, there was an appeal before the AAC. The AAC was of the opinion that the assessee's plea that there was no necessity for executing a fresh deed was sustainable. As regards the delay in filing the application, the AAC was of the view that there was a bona fide belief that no application for registration was initially considered necessary as the assessee was not aware that there was a change in the constitution of the firm within the meaning of Section 184(8). Therefore, he condoned the delay in the application for registration and registered the firm for the assessment year 1971-72.

4. Aggrieved by the decision of the AAC, the - department came up in appeal before the Tribunal.

5. It was urged on behalf of the department that the AAC was wrong in granting registration to the assessee on merits, as no fresh deed was executed within the meaning of Section 184(8) and that without such a fresh deed during the relevant accounting year there was no justification for the AAC to grant registration to the firm. It was submitted that the exchange of letters in December, 1969, did not amount to or could not be added as a substitute for a fresh deed of partnership. It was not enough that there was substantial compliance with the rates for registration, but it was absolutely necessary that the assessee should fully comply with all the requirements for registration. It was further contended that the agreement of partnership should be contained in a single document and that the provision of the new Act made it incumbent on the assessee to execute a fresh deed of partnership every time, if there was a change in the constitution of the firm.

6. On behalf of the assessee, it was pointed out that while under the old Act a firm had to be constituted under an instrument of partnership, under the new Act a firm had to be evidenced by an instrument of partnership. The Tribunal was, therefore, entreated to sustain the AAC's order.

7. After hearing both the parties, the Tribunal entirely agreed with the learned advocate for the assessee in the matter, having regard to the Calcutta High Court decision in the case of Haridas Premji [1930] 4 ITC 475 and to the Allahabad High Court decision referred to by the AAC and held that multiplicity of instruments could be treated as amounting to a deed of partnership for the purpose of registration. Reliance was placed upon the Bombay High Court decisions in the cases of A. Phiroj and Co. : [1966]59ITR645(Bom) and in the case of Chhotalal Devchand : [1958]34ITR351(Bom) . And having regard to the correspondence between GEC and Philips in December, 1969, the Tribunal was of the view that the letter dated December 2, 1969, served as a fresh deed of partnership spelling out the reduction of numbers of partners to two with their fresh profit-sharing proportion.

8. It was next held that the AAC was perfectly justified, in the facts and circumstances of the case, to condone the delay for filing the application. In the result, the departmental appeal was dismissed. On the above facts and circumstances, the Tribunal referred the following question to this court:

' Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the letter dated the 2nd December, 1969, which passed between General Electric Co. of India Ltd. and Philips India Ltd. served as a fresh deed of partnership and it was not necessary to further enter into a fresh partnership for the grant of registration to the assessee for the assessment year 1971-72? '

9. Mr. B. K. Bagchi, learned advocate for the revenue, with reference to Sections 184 and 187 of the I.T. Act, 1961, contends that the assessee was not entitled to registration as there was no regular deed of partnership, and as there was a change of the partners and the respective shares of the partners. He refers to the decision of the Bombay High Court in the case of Tambe and Sons v. CIT 0065/1976 : [1977]110ITR309(Bom) . In this case, by a deed of partnership dated March 18, 1960, four persons entered into an agreement to carry on a business and to share the profits thereof respectively. The partnership was to commence from January 1, 1960, and the accounting year was to be the calendar year. Clause 11 of the deed provided that in the case of death or insolvency of any of the partners, the partnership would be carried on by the remaining partners. In the course of the very first year of the existence of the partnership, one of the partners died. The business was continued by the remaining partners without executing any fresh deed of partnership or entering into any written agreement about the division of profits. The ITO, though he had granted initial registration to the firm for the assessment year 1961-62, rejected the application for renewal of registration for the year 1962-63. The Appellate Tribunal,reversing the order of the AAC, upheld the rejection of the application by the 1TO. On a reference to the High Court, it was held that the new partnership of three partners was not entitled to registration, as there was no instrument of partnership specifying the respective shares of the partners. It was further held that Section 184(7) would not be attracted to a case where there is no instrument of partnership specifying the shares of the existing partners. At page 314 of the report, their Lordships enunciated the law as hereunder :

' One thing is, however, clear that there is no instrument of partnership among the three surviving partners specifying their revised shares and in the absence of such a deed it is quite clear that the provision of Sub-section (7) of Section 184 cannot be attracted.'

10. Next Mr. Bagchi relies on the decision of the Madhya Pradesh High Court in the case of Nawab & Brothers v. CIT : [1980]124ITR307(MP) . In this case one of the partners of a firm who applied for renewal of registration for the assessment year 1969-70 had retired on May 17, 1968, in the relevant previous year. Thus, there was a change in the constitution of the firm and in the shares of the partners as evidenced by an instrument of partnership on the basis of which registration was granted. In view of the first proviso to Sub-section (7) of Section 184 of the Act it was held that, on the facts and circumstances of the case, the Tribunal was justified in holding that there was no effective deed in the year of account relevant to the order under appeal and hence the order passed by the ITO for continuance of registration was not in accordance with law.

11. In both the cases, Mr. Bagchi interprets the instrument of partnership as a regular deed of partnership. According to his opinion, there cannot be any order of registration in the absence of a regular deed of partnership specifying the specified shares of the partners.

12. Next Mr. Bagchi refers to the decision of a writ application in the case of Sandersons and Morgans v. ITO : [1973]87ITR270(Cal) , wherein my Lord Mr. Justice Sabyasachi Mukharji rejected the writ petition on the ground that there was a change in the constitution of the firm consequent on the death of a partner and as such the application was not in conformity with the form as it was not signed by all the partners. There was an appeal against this decision which was rejected as per judgment reported in Sandersons & Morgans v. ITO : [1977]108ITR954(Cal) . In our opinion, the decisions reported in : [1973]87ITR270(Cal) and : [1977]108ITR954(Cal) have little bearing to the facts and circumstances of the present case.

13. A reference was also made to the decision of this court in the case of Mathurdas Govardhandas v. CIT reported in : [1980]125ITR470(Cal) . Mr. Bagchi specifically draws our attention to p. 486 of the report wherein a referenceis made to the decision in the case of Sandersons & Morgans : [1973]87ITR270(Cal) . It was observed by their Lordships that the decision in that case was not on the question involved in the case pending before their Lordships because in that case the deed provided that the date of retirement of any of the partners would not dissolve the partnership. During the relevant accounting period one of the partners had died and thereafter without a fresh deed being executed it was contended by the firm that there had been no change in the constitution of the firm and the earlier registration of the firm continued to be effective. It was held that the firm no doubt continued after the death of a partner but by reason of such death there was a change in the constitution of the firm and, therefore, it was necessary for the firm to apply for fresh registration under Section 184 of the I.T. Act. In that case, it was not necessary for the court to deal with the dissolution of a partnership or with Section 187 or Section 188 of the I.T. Act, 1961. In that case, their Lordships were dealing with the earlier deed of partnership dated December 17, 1963, which did not provide for a continuance of the partnership on the death of any of its partners. Accordingly, it was observed that it could not be said that there was any express agreement between the partners and the firm continued on the death of any of them. It remained to be considered whether from the conduct of the partners and other surrounding facts and circumstances it could be inferred that there was an implied agreement between the said partners and the death of one of them would not bring about the dissolution of partnership. On the facts and circumstances of the case, it was accordingly held that it did not follow that there was an implied agreement between all the partners of the old firm during their lifetime to continue the firm in the event of the death of any of them. Thus, the arguments of the revenue were overruled that there must have been an agreement between all the partners of the old firm during their lifetime that the said firm would not be dissolved on the death of any of them.

14. The law on the point was clearly explained and enunciated by the Supreme Court in the case of RC. Miller & Sons v. CIT : [1959]36ITR194(SC) and D.C. Auddy & Brothers v. CIT reported in : [1959]36ITR194(SC) . It would be advantageous for us to refer to the passage at pp. 200-201 of the report (36 ITR 194), which reads as follows:

'After having, thus, held that Section 26A contemplated firms created or brought into existence by a deed in writing, he had no difficulty in substituting ' by ' for ' under ', thus, making the crucial words ' constituted by ' instead of' constituted under'. In our opinion, the learned Chief Justice fell into the error of re-constructing the provisions of the statute, instead of construing them. The word ' by ' could be substituted for the word ' under' in Section 26A only if the words, as they stand in thesection, were not capable of making sense, and it would thus have been necessary to amend the wording of the section. Turning his attention from the wording of the section to that of the Rules and the Form appearing under the Rules, he again came to the conclusion that 'some of the paragraphs of the Form appear to be ill-adjusted to the provisions of the Act'. Referring to other parts of the Rules, he was constrained to observe that they ' would lend strong support to the view that what is meant by ' any firm constituted under an instrument of partnership ' in Section 26A is no more than a firm of which the constitution appears from an instrument in writing. It is obvious that if such be the meaning of the expression 'constituted under an instrument of partnership ', the instrument need not be one by which the partnership was created'. But then he attempted to get over that difficulty by observing that the language of the Rules and the Form could not supersede a provision contained in the Act itself. He further opined that the language in paragraph 4(1) is ' undoubtedly unsatisfactory'. In our opinion, any attempt to reconstruct the provisions of the relevant section and the Rules, on the assumption that the intention of the Legislature was to limit the registration of firms to only those which have been created by an instrument of partnership is, with all respect, erroneous. The proper way to construe the provisions of the statute is to give full effect to all the words of the relevant provisions, to try to read them harmoniously, and then to give them a sensible meaning. Hence, we have to consider, at the threshold, the question whether the words ' constituted under an instrument of partnership ' have some meaning which can be attributed to them harmoniously with the rest of the relevant provisions. A partnership may be created or set up by a contract in writing, setting out all the terms and conditions of the partnership, but there may be many cases, and perhaps, such cases are more numerous than the other class, where a partnership has been brought into existence by an oral agreement between the parties on certain terms and conditions which may subsequently be reduced to writing which will answer the description of an instrument of partnership. Such an instrument would, naturally, record all the terms and conditions of the contract between the parties which, at the initial stages, had not been reduced to writing. In such a case, though the partnership had been brought into existence by an oral agreement amongst the partners, if the terms and conditions of the partnership have been reduced to the form of a document, it would be right to say that the partnership has been constituted under that instrument. The word 'constituted' does not necessarily mean 'created ' or ' set up ', though it may mean that also. It also includes the idea of clothing the agreement in a legal form. In the Oxford English Dictionary, Vol. II, at pp. 875 and 876, the word 'constitute' is said to mean, inter alia, 'to set up, establish, found (an institution, etc.)' and also ' to give legal or official form or shape to (an assembly, etc.)'. Thus, the word in its wider significance would include both the idea of creating or establishing, and the idea of giving a legal form to a partnership. The Bench of the Calcutta High Court in the case of R.C. Mitter and Sons v. Commissioner of Income-tax : [1955]28ITR698(Cal) under examination now, was not, therefore, right in restricting the word ' constitute ' to mean only 'to create', when clearly it could also mean putting a thing in a legal shape. '

15. The Bombay High Court had occasion to consider what would be the requirements for satisfying the ingredients of an instrument of partnership in the case of A. Phiroj and Co. v. CIT reported in [1966] 39 ITR 645. It was held therein that under Section 26A of the Indian I.T. Act, 1922, in order to obtain registration, the firm must be constituted under an instrument of partnership which specified the individual shares of the partners.

16. The instrument of partnership may be a single document or may be spelt out of several documents, all existing in the relevant accounting year, which will together form an instrument of partnership, but if the documents by themselves do not have that effect, then there is no instrument of partnership as required by Section 26A.

17. It is also observed that the word ' instrument' as used in Section 26A will mean a document of a legal nature, by which any right or liability is or purports to be created, transferred, limited, extended, extinguished or recorded. A document, in order to create rights or liabilities or even to record rights and liabilities, must be executed by the parties whose rights or liabilities the document creates, or whose rights and liabilities it records. The instrument has to be an instrument not of any partnership, but of the partnership of certain specified individuals. A mere record of some terms of the partnership will not make the document an instrument of partnership of certain specified individuals. It must be the document itself which must constitute the instrument of partnership.

18. It is necessary that the single document or the several documents, constituting the partnership instrument, must be in existence in the year of account.

19. On this background, Mr. Bagchi raises the question whether the letter dated December 2, 1969, constitutes a fresh partnership. In his opinion, a partnership should be evidenced by a regular deed of partnership. Next, he raises the question whether in answering the requirements a formal deed of partnership would be necessary or not. In his opinion, the letter dated December 2, 1969, should not be taken into account as it was not registered. Again, the document of partnership must be in existence duringthe whole period of the accounting year. A reference is made in this connection to the decision of the Kerala High Court in the case of Malankara Timbers v. CIT reported in : [1967]66ITR200(Ker) .

20. In this case, the partnership in question was supposed to have come into existence from March 1, 1959, by means of a deed purported to have written up and signed by the partners on that date, though the stamp paper was purchased only on March 23, 1959, and the departmental authorities refused registration of the firm for 1960-61, relevant to the accounting year April 1, 1959, to March 31, 1960. On a reference, the High Court held that as there was no material to show that the partnership was factually in existence during the whole of the accounting year and all that should be said was that the deed was executed on some date between March 23, 1959, the date on which the stamp paper was purchased, and April 29, 1959, the date on which the application for registration was filed, the registration was properly refused.

21. The letter dated December 2, 1969, is incorporated at p. 41 of the paper book. This was from Philips India Ltd. to the General Electric Co. of India Ltd. Philips India Ltd. were to receive 49.11% of the shares and the General Electric Co. of India Ltd. 50.89% of the shares with effect from November 28, 1969. It cannot be said that the new instrument was not in existence for the whole of the accounting year; as to the question of stamp, there is no knowing whether this letter was stamped or not.

22. Mr. Bagchi next makes a reference to the case of the Madras High Court in United India Life Assurance Co. Ltd. v. CIT reported in : [1963]49ITR965(Mad) . It is held therein that where a compromise or arrangement for amalgamation of companies involves an agreement for a transfer of the assets of one company to the other, the transfer takes effect only from the date on which the court sanctions the scheme under Section 153A of the Indian Companies Act, 1913. The sanction of the court under this section has no retrospective operation and does not make the transfer effective from the date of the agreement or from the date of resolution of the company approving the agreement. But in this case the letter dated December 2, 1969, confers and ratifies the agreement between the parties of November 28, 1969. In this view of the matter, this decision has little bearing on the facts and circumstances of the present case.

23. As to the question whether the documents should have been refused for consideration as that had not been properly stamped, it may be said that the rigorous provision of the Evidence Act would not be binding on the ITO. There is no dispute about the fact that the ITO is not a court. Again, a document not properly stamped can be admitted in evidence on that being impounded. Dr. Pal, in reply, draws our attention to Section 36 ofthe Indian Stamp Act, 1899, which lays down that where an instrument has been admitted in evidence, such admission shall not except, as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. He cites the decision of the Supreme Court in the case of Javer Chand v. Pukhraj Surana, : [1962]2SCR333 . It is held therein that where the question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter. As soon as a document is tendered in evidence and put, it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to the court of appeal or a revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.

24. In any event of the matter, we do not find any substance in Mr. Bag-chi's contention that the letter dated December 2, 1969, should have been left out of consideration as it was not properly stamped. Under this letter dated December 2, 1969, specified shares were determined between the agreeing parties. For such allotment of shares, in his opinion, the document was also to be stamped. He makes a reference to the decision in CIT v. Tribhuvandas G. Patel : [1978]115ITR95(Bom) of the report, it is stated that under the facts and circumstances of the case it appears that, in the first place, a retiring partner while going out and while receiving what is due to him in respect of his share, may assign his interest by a deed or he may, instead of assigning his interest, take the amount due to him from the firm and give a receipt for the money and acknowledge that he has no more claim on his co-partners. The former type of transactions would be regarded as sale or release or assignment of his interest by a deed attracting stamp duty while the latter type of transaction would not.

25. In the present case, there was a determination of shares of the two partners of the firm. There was admittedly no passing of any amount for which a receipt was necessary. In this view of the matter, the decision reported in CIT v. Tribhuvandas G. Patel : [1978]115ITR95(Bom) has absolutely no bearing to the facts and circumstances of the instant case.

26. Last of all, Mr. Bagchi makes a reference to the decision of this court in the case of Haridas Premji v. CIT, : AIR1932Cal409 . In this case,letters between the partners containing various terms were considered and it was found how and when such letters should be registered as agreement of partnership. Where a reply of the senior partner to the letter of the junior partners, proposing shares of profits to be divided between them and some other terms, does not purport to accept all the terms proposed but only accepts the term as regards the amount of the shares of the profit but it is silent as to a number of matters that were proposed in the letter addressed to the senior by the juniors, the question whether all these letters are an agreement within the meaning of Section 2(14) is of some difficulty because one has to enquire whether something which did not purport itself to be an agreement was in fact an agreement by reason of the fact, that the acting of the parties had contributed assignment of the document which did not appear by themselves to have been consented to. In such a case, the reasonable course which should be adopted is that either the junior partners should write any other letter saying that the other conditions proposed by their letters to the senior partners are waived, or that the senior partners should write another letter to the junior partners saying that the other terms and conditions proposed by them are accepted by him and the application for registration of the firm, when amended by the addition of this further document, should be treated as the same application and as made in good time on the date on which the original application was made.

27. In reply, Dr. Pal draws our attention to the case reported in : AIR1931Cal682 (Ramlal Murlidhar, In re). It is laid down therein that though under Section 2(14) a firm to be registered must be the firm constituted under the instrument, it does not imply thereby that in order to satisfy the requirements of the firm being constituted under the instrument, a complete instrument only is intended to be valid for registration, that is to say, an instrument which does not require supplementing by other evidence but contain in itself the complete agreement constituting the partnership and by itself solely operates to create the partnership.

28. In reply to the question raised by Mr. Bagchi as to the requirement for a partnership. Dr. Pal refers to the decision of the Supreme Court in the case of K.D. Kamath and Co. v. CIT reported in : [1971]82ITR680(SC) . It is laid down therein that two essential conditions to be satisfied are: (1) that there should be an agreement to share the profits as well as the losses of the business, and (2) the business must be carried on by all or any of them acting for all, within the meaning of the definition of ' partnership ' under Section 4 of the Partnership Act.

29. Thus, on a consideration of the entire facts and circumstances of the case, we are of the opinion that it should be remembered what the statute requires is that a partnership is to be evidenced ' by instrument ' whereasSection 26A of the Act of 1922 says that a partnership was to be 'constituted under an instrument'. This instrument should specify the individual shares of the partners. The partnership should be genuine, valid and should actually be evidenced by a document as specified in the instrument. Under Section 184(3) an application for registration should be signed by all the partners. Thus, in our opinion, 'instrument' does not mean only a regular partnership deed but it may constitute any other formal transfer. If the terms of a partnership are contained in a number of documents or in the correspondence between the parties, the documents or letters would constitute the 'instrument of partnership'. In this view of the matter, we are of the opinion that the Tribunal was perfectly justified in affirming the order of the AAC and we, therefore, answer the question in the affirmative and in favour of the assessee.

30. There will, however, be no order as to costs.

Sabyasacht Mukharji, J.

31. I agree.


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