Court : Kerala
Reported in : 200ITR366(Ker)
..... documents of the firm which would show how the profit or loss had been actually apportioned between the partners and also by taking recourse to section 13(b) of the indian partnership act, 1932. we, therefore, hold, with great respect to the learned judges, that the decisions in cit v. ithappiri and george : 88itr332(ker) and united hardwares v. cit : 96itr348 ..... be shared is otherwise ascertainable and that, assuming the section did so require, clause 9 of the instrument satisfied that requirement. reliance was placed on section 13(b) of the indian partnership act.49. the supreme court, at the outset, rejected the contention of the assessee-firm that, if specific reference to individual shares of the partners in the loss of the firm ..... court decisions in kylasa sarabhaiah v. cit : 56itr219(sc) and parekh wadilal jivanbhai v. cit : 63itr485(sc) and also to the provisions under section 13(b) of the indian partnership act, 1932. ultimately, the bench came to the conclusion by applying the dictum laid down in n. t. patel's case : 42itr224(sc) that specification of the individual shares of ..... and give it a limited meaning. the deed itself should contain the specification of both profit and loss and any other provision of law including section 13(b) of the indian partnership act shall not be looked into for the purpose of ascertaining the proportion of loss.33. in united hardwares v. cit : 96itr348(ker) , the firm was constituted of three partners .....Tag this Judgment!
Court : Kerala
Reported in : 200ITR161(Ker)
..... individual otherwise than for adequate consideration or in connection with an agreement to live apart.' 61. kochu thommen j. (as he then was), held that a firm under the indian partnership act, 1932, is not a distinct legal entity apart from the partners constituting it and the firm's property or assets are only the property or assets of the partners and ..... of the firm. the basic ruling in this regard is the decision of the supreme court in addanki narayanappa v. bhaskara krishnappa : 3scr400 . considering the scheme of the indian partnership act, mudholkar j., who delivered the judgment, observed that no partner can claim any exclusive right over the the properties which become the assets of the firm from whatever source they ..... : 105itr144(ker) . a abdul rahim, travancore confectionery works v. cit : 110itr595(ker) . it is also well-established that (at page 49 of 120 itr) 'a partnership firm, under the indian partnership act, 1932, is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in ..... the properties and that, upon dissolution, to a share in the proceeds of sale of the partnership assets, after all such payments contemplated under section 48 of the indian partnership act have been met. section 29 of the indian partnership act, however, provides that, even during the subsistence of the partnership, a partner may assign his share to another but the right of the assignee is only .....Tag this Judgment!
Court : Kerala
Reported in : 120ITR670(Ker)
..... supported not only by the relative provisions of the income-tax act, but is in accord with the basic principles of the partnership law.'3. in the light of this principle the full bench examined the principles of partnership set out in lindley on partnership. the legal position of a firm under the indian partnership act flows from the concept of a firm not being a person ..... in the eye of the law. it was pointed out that a partner in a partnership could not be an employee of the partnership and that this has been recognised in ..... 3 of the partnership act and the statement of principle in lindley on partnership, and again, on examination of the provisions of the indian law of partnership. in the light of the above, the conclusion was stated thus (p. 299) :' the necessary inference from the premise that ..... of the business must be regarded as portion of the profits being made over as a reward for the human capital brought in. section 13 of the partnership act brings into focus this basis of partnership business.'5. at pages 297 & 298 the court examined the position that a firm is not a person in law. this was stressed with reference to section .....Tag this Judgment!
Court : Kerala
Reported in : 120ITR644(Ker)
..... state that all contracts between a person a, and a and others would be invalid. reference may be made in this connection to the provisions of section 46 of the indian partnership act, 1932, where a partner may enforce as against the firm of which he is a partner certain contractual rights by means of a suit (without dissolution), whereas others can only ..... shri k.s. krishnadas as their representative to carry on the business of partnership by their power-of-attorney. shri k. s. krishnadas joined the document of ..... three sons as representatives of his estate, who were to carry on the partnership in his place along with the other partners in the original deed. this was quite permissible and quite consistent with the provisions of clause 13 of the partnership deed as well as section 37 of the indian partnership act. in accordance with the devolution of interest, the three heirs had constituted ..... that the surviving or continuing partners could carry on the business of the firm with the estate of the deceased partner, so that section 37 of the partnership act would have been attracted if this fresh partnership had not been executed, and that the position was directly covered by the decision of the bombay high court in cit v. raghavji anandji and co .....Tag this Judgment!
Court : Kerala
Reported in : 132ITR497(Ker)
..... that 'in the other respects, not hereunder expressly provided for, the rights and liabilities of the firm as well as among the partners inter se, shall be governed by the indian partnership act'. the minors attained majority on december 26, 1963, august 28, 1966, august 14, 1967, and february 23, 1969, respectively, during the relative assessment years 1965-66, 1967-68, 1968-69 ..... ' means a person by whom agricultural income-tax is payable and under section 2(m) 'person' means, inter alia, a firm. section 2(k) states that 'firm' 'partner' and 'partnership' have the same meanings respectively as in the indian partnership act, 1932, and that the expression 'partner' shall also include any person who being a minor has been admitted to the benefits of the ..... partnership. section 18(5)(a) provides that when the total income of a registered firm has been assessed, the sum payable by the firm itself shall not be determined but the ..... laxmi narain v. cit : 68itr696(all) was a case under section 26a, indian i.t. act, 1922, and it supports the conclusion of the commissioner. it was held in that case that while under the partnership act it was not necessary for a minor on attaining majority to execute a partnership deed along with the existing partners as he would be deemedto have become .....Tag this Judgment!
Court : Kerala
Reported in : 204ITR141(Ker)
..... for abdulla koya, husbandof smt. kadishabi. from the statements of smt. kadishabi and smt. ayishabi, it is clear that a partnership as contemplated under section 4 of the indian partnership act has not been constituted.5. the definition of partnership in section 4 of the indian partnership act contains three elements, viz., (i) there must be an agreement entered into by all the partners concerned, (ii) the agreement ..... refused for that reason. furthermore, the assessing officer has found the partnership deed to be not genuine which finding was confirmed by the appellate assistant commissioner ..... with the business as stated by them, a partnership as defined in section 4 of the act is not constituted.6. only a partnership firm is entitled to present an application for registration under section 184(1) of the income-tax act, 1961. since the firm constituted by annexure-d is not a partnership as defined under the indian partnership act, the request for registration has to be .....Tag this Judgment!
Court : Kerala
Reported in : II(2003)BC486; (2003)182CTR(Ker)424; 261ITR292(Ker); 2003(1)KLT765
..... taken the same view. the tribunal, however, referred to the provisions of section 11(1) of the companies act and held that since the partnership firm was registered under the indian partnership act and also obtained licence under the money lenders act the requirements of section 11(1) are satisfied and, therefore, the assessee firm is entitled to registration.5 ..... it has to be registered under the companies act, or under the money lenders act, partnership act or under any other indian law such as travancore cochin literary, scientific and charitable societies registration act or under the societies registration act. so far as partnership is concerned it is governed by the provisions of the indian partnership act. what is contemplated under section 11 of ..... the companies act is that in respect of a partnership with more than ten persons for carrying on banking business it must be formed under the indian partnership act and consequently the partnership so formed must be registered under the partnership act. sub-sections (4) and (5) ..... fact the tribunal has rightly understood this position and held that since the assessee firm is registered under the indian partnership act besides holding licence under the money lenders act the provisions of section 11 of the companies act is satisfied. in other words the inhibition contained under section 11 is not attracted. we are perfectly in agreement .....Tag this Judgment!
Court : Kerala
Reported in : 61CompCas209(Ker)
..... file the statement on his satisfaction that the provisions of sections 58 have been duly complied with. a company being a ' person ' within the meaning of sections 4 of the indian partnership act, registration cannot be declined for the reason of its being a partner of the firm. i, therefore, quash exhibit p-8 and the endorsement by the respondent on exhibit p ..... which this company can carry on, and to amalgamatewith any other company or companies in such manner as this company shall think fit.'3. as per sections 58 of the indian partnership act 'the registration of a firm may be effected at any time by sending by post or delivering to the registrar of the area in which any place of business of ..... re-presentation of the application along with exhibit p-10. the application is still pending before the respondent and the firm is not yet registered under sections 59 of the indian partnership act. this original petition is to quash exhibit p-8 memo and the endorsement on exhibit p-9 as per which the respondent has taken the view that a company cannot ..... incorporated or not', unless there is anything repugnant in the subject or context to exclude a company registered under the indian companies act from becoming a partner of the firm. it is a ' person ' within the meaning of sections 4 of the indian partnership act and can very well be a partner of a firm. exhibit p-2 is the memorandum of association of the .....Tag this Judgment!
Court : Kerala
Reported in : 207ITR1072(Ker)
..... of a firm. it does not cast any new liability on the partners. such liability exists de hors section 188a, having regard to the provisions of section 25 of the indian partnership act which stands recognised otherwise in section 189. the decision of the full bench, in my view, only goes to the extent of interdicting proceedings under the ..... on the petitioners for the dues of the firm, gemini plantations. it cannot be doubted having regard to the provisions of section 25 of the indian partnership act that the partners are jointly and severally liable for all the acts of the firm while he was a partner. therefore, the partners are jointly and severally liable for the tax dues of the firm. in ..... that recovery proceedings could be only against the assessee in terms of the assessment order, without importing the notion of joint and several liability contained in section 25 of the partnership act. the words 'as the scheme of the act visualises proceedings being taken against the firm or the partners only if a liability is imposed under the provisions of the ..... or the partners only if a liability is imposed on them under the provisions of the act, any liability for the tax imposed on a firm as such under the act cannot be treated as the liability of the partners by importing the general principles of partnership law and therefore those dues of the firm cannot be recovered from the partners. in the .....Tag this Judgment!
Court : Kerala
Reported in : 96ITR348(Ker)
..... that judgment. we shall extract a paragraph from that judgment :' the question is not whether there is any rule of law discernible either from section 13(b) of the indian partnership act, 1932, or from any general principle from which it is possible to discern the proportion in which the losses should be shared but as to whether section 184 insists ..... partners to third parties '. though the wording in clause 15 of the partnership deed is not very clear as to what are the provisions of the indian partnership act that are intended to be made applicable it may not be unreasonable to construe that clause to refer to chapters iii and iv of ..... avaran koya. 25% ............................. 15. in matters wherein no specific mention is made hereunder, the provisions of the indian partnership act, 1932, shall prevail with respect to the relationship between the partners and the firm and third parties.' 3. chapter iii of the indian partnership act, 1932 (for short ' the act ') deals with ' relations of partners to one another ' and chapter iv thereof deals with ' relations of ..... the partnership act. so construed, the provisions in the act dealing with 'relations of partners to one another' will be attracted. the provisions in section .....Tag this Judgment!