Court : Kerala
Decided on : Jul-25-1991
Reported in : (1991)98CTR(Ker)12; 195ITR716(Ker)
..... free consent of the parties who are competent to contract must be there. as a minor is incompetent to enter into a partnership, the partnership was held to be contrary to the relevant provisions of the indian contract act and the indian partnership act. the partnership deed was held to be invalid. hence, it was held that the income-tax officer, in exercising his power of cancellation ..... to whether there is or is not a genuine firm in existence, the income-tax officer is required to consider the validity of the deed of partnership. the definition of partnership under section 4 of the indian partnership act contains three elements : (a) there must be an agreement entered into by all the persons concerned ; (b) the agreement must be to share the ..... in mahabir prasad kishanlal and co. v. cit , a division bench of the gauhati high court held that, if the deed of partnership is invalid in law offending any of the provisions of the indian partnership act or the indian contract act, the income-tax officer can legally hold that registration was obtained without there being a firm in existence and, therefore, such registration is ..... of the total income of the previous year of every person. under section 2(31) of the act, 'person' will include a firm. 'firm' has been defined in section 2(23) by reference to the indian partnership act. section 4 of the indian partnership act, 1932, defines partnership as the relation between persons who have agreed to share the profits of a business carried on by .....Tag this Judgment!
Court : Kerala
Decided on : Jan-14-1991
Reported in : (1999)IIILLJ1439Ker
..... ordervarghese kalliath, j. 1. petitioner is a firm registered under the indian partnership act. it carries business in textiles at kottayam. the firm has started business on march 12, 1960. there is no dispute that the petitioner firm is a registered firm.2. there ..... crucial facts, which are important for a final conclusion have not been considered, applying the correct law with regard to those facts. admittedly the four firms are registered under the partnership act. though a partnership is not considered to be a legal person, it has got almost all the trappings of a legal person. further in this case, the fact that the four ..... . in this case, there is no dispute that the four firms, in a way have got a separate and independent character insofar as by virtue of the registration under the partnership act, they can be considered as a separate entity. that vital aspect has not been properly dealt with in the order passed by the first respondent.7. i do not want ..... case. they are m/s. parthas textile, kayamkulam, m/s. parthas, trivandrum, m/s. parthas textiles, nagarcoil and m/s. parthas textiles, alleppey. these are also firms registered under the partnership act on july 7, 1975, november 17, 1976, september 1, 1978 and august 17, 1981 respectively.3. the question involved in this case is whether the four .....Tag this Judgment!
Court : Kerala
Decided on : Jan-08-1991
Reported in : 189ITR692(Ker)
..... . c. no. 5 of 1985 on the file of the additional chief judicial magistrate (economic offences), ernakulam. the first accused is a partnership firm and accused nos. 2 and 3 are its partners. all the three accused have been convicted for the offence punishable under section 277 of the income ..... as the lower appellate court came to the conclusion that the accused committed offences punishable under section 277 of the income-tax act and sections 193 and 196 of the indian penal code. the conviction and sentence entered against the accused are challenged on various other technical grounds, it was submitted that the ..... there is no evidence to show that the third accused was carrying on the business of the partnership firm. the third accused could be roped in only on the basis of section 278b of the income-tax act, 1961. this section came into force on october 1, 1975. exhibit p-3 report was ..... , ernakulam, alone had jurisdiction to file the complaint. moreover, section 195(1)(b)(i) says that any offence punishable under any of the following sections of the indian penal code, namely, sections 193 - 196 (both inclusive), 199, 200, 205 - 211 (both inclusive) and 228 when such offence is alleged to have been ..... has been imposed. prior to the amendment effected on october 1, 1975, the punishment for offences under sections 277 and 278 of the income-tax act was imprisonment only. hence, a firm which is a juristic entity cannot be proceeded against under sections 277 and 278 and the court took the view .....Tag this Judgment!
Court : Kerala
Decided on : Apr-02-1991
Reported in : 192ITR515(Ker)
..... of an application for the registration of a firm, the income-tax officer shall inquire into the genuineness of the firm and its constitution as specified in the instrument of partnership, and -(a) if he is satisfied that there is or was during the previous year in existence a genuine firm with the constitution so specified, he shall pass an order ..... 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, before the expiry of the time allowed under sub-section (1) or sub-section (2) of ..... was whether there was any 'agreement' in the eye of law, in the absence of signature of the parties, in the deed and the said decisions arose under the indian income-tax act, 1922, wherein the provisions were different. the decisions cited by counsel for the revenue have no relevance to the case on hand wherein we are concerned with the statute ..... to the case on hand.'184. application for registration.--(1) an application for registration of a firm for the purposes of this act may be made to the income-tax officer on behalf of any firm, if- (i) the partnership is evidenced by an instrument; and (ii) the individual shares of the partners are specified in that instrument. .. (3) the application shall .....Tag this Judgment!
Court : Kerala
Decided on : Jan-31-1991
Reported in : 189ITR711(Ker)
..... be included in the income of the respective assessees. we should state that the language of section 16(3)(a)(iv) of the indian income-tax act, 1922, and section 64(1)(vii) of the income-tax act, 1961, seem to be different. whether the dictum laid down in prem bhai parekh' case : 77itr27(sc) will ipso ..... is a remote one. the income of the minors arose as a result of their admission to the benefits of the partnership. it is true that they were admitted to the benefits of the partnership because of the contribution made by them. but there is no nexus between the transfer of the assets and the income ..... appeal, it was upon agreement by the remaining partners that she became a member of the partnership. the mere contribution of the capital by the wife to the firm would not automatically have entitled her to partnership in the firm. the partnership was based on agreement, and it is the event of agreement between the partners that ..... partnership in the firm could be included in the total income of the assessee under section 16(3)(a)(iv) of the income-tax act which was to the following effect (at pp. 29, 30): 'in computing the total income ..... the firm with effect from july 2, 1954, whereby the major son became a partner and the minor sons were admitted to the benefits of partnership in the firm. the question was whether the income arising to the minors by virtue of their admission to the benefits of .....Tag this Judgment!
Court : Kerala
Decided on : Feb-11-1991
Reported in : I(1991)ACC701
..... '.(5) benarsi debi v. new india assurance co. 1959 ap 540.again at page 183, the learned author says:apart from fiduciary relationships contracts of partnership, contracts of insurance are the leading instances of contracts expressed by the law to be contracts of the utmost faith where material facts must be disclosed; ..... or misrepresentation, then in order to repudiate liability under the policy they must show that the misstatement concerned material facts.in pollock & mulla's indian contract act and specific relief acts, 10th edition at page 98, 'material fact' has been defined as 'any fact the knowledge or ignorance of which would materially influence an ..... 9) suppression of material facts when making a proposal for insurance by one having knowledge or belief of the fact would fall under section 17 of the contract act and the policy issued would be vitiated thereby (10)(6) bell v. lever brothers ltd. (1932) a.c. 161.e.g. case of suppression of ..... i am of the view that the defendant cannot call in question the first policy in view of the first part of section 45 of the act as more than two years have elapsed after the commencement of the first policy.8. as far as the second policy is concerned, the death occured ..... the first submission of learned counsel for appellant that since revival is within two years, the case will not fall under section 45 of the act and that it would be open to the insurer to cell the policy in question on the ground that the statement made in the proposal for .....Tag this Judgment!
Court : Kerala
Decided on : Feb-11-1991
Reported in : 1993ACJ1140; AIR1991Ker230
..... veri, suggestio falsi by making a suggestion which is false.' again at page 183, the learned author says ;--- 'apart from fiduciary relationships contracts of partnership, contracts of insurance are the leading instances of contracts expressed by the law to be contracts of the utmost faith where material facts must be disclosed; ..... misrepresentation, then in order to repudiate liability under the policy they must show that the misstatement concerned material facts.' in pollock and mulla's indian contract act and specific relief act, 10th edition at page 98, 'material fact' has been defined as 'any fact the knowledge or ignorance of which would materially influence an ..... of material facts when making a proposal for insurance by one having knowledge or belief of the fact would fall under section 17 of the contract act and the policy issued would be vitiated thereby mithoolal v. life insurance corporation of india (1962) a sc 814 e.g. case of suppression of ..... i am of the view that the defendant cannot call in question the first policy in view of the first part of section 45 of the act as more than two years have elapsed after the commencement of the first policy. 8. as far as the second policy is concerned, the death ..... the first submission of learned counsel for appellant that since revival is within two years, the case will not fall under section 45 of the act and that it would be open to the insurer to call the policy in question on the ground that the statement made in the proposal .....Tag this Judgment!
Court : Kerala
Decided on : Jun-04-1991
Reported in : 194ITR23(Ker)
..... the affairs of the firm and the return is evidence against the firm in view of section 23 of the partnership act. every partner is liable jointly with all the other partners and also severally, for all the acts of the firm done while he is a partner. counsel would, therefore, contend that the assessee being a ..... the return was submitted by sri jose, one of the partners of the firm, and his acts bind the firm. attention is drawn to section 19 of the partnership act which says that, subject to the provisions of section 22, the act of a partner which is done to carry on, in the usual way, business of the ..... kind carried on by the firm, binds the firm. according to counsel, sri jose had acted under this implied authority. it is ..... in the return submitted by the assessee with regard to the stock of gold. the explanation of sri jose who filed the return on behalf of the partnership was that he was not aware of the manipulations in the accounts and that, on knowing about the malpractices found to have been carried out in the ..... , it was carried on by one p. t. antony. from april 1, 1968, his major sons were taken as partners and the business was converted into a partnership. the then managing partner, p. t. antony, died on july 14, 1970. the reference is in respect of the assessment year 1970-71 for which period the .....Tag this Judgment!
Court : Kerala
Decided on : Nov-19-1991
Reported in : 197ITR499(Ker)
..... of the firm by the remaining partners or by admission of legal representatives or new partners. the new firm takes over the assets and liabilities. under section 37 of the partnership act, as held in addanki narayanappa v. bhaskara krishnappa : 3scr400 , the outgoing partner or the estate of the deceased partner, in the absence of a contract to the ..... surviving partners to account for the deceased partner's share as it stood on his death and to have his claim satisfied out of the assets of the dissolved partnership after discharging all the liabilities incurred before dissolution and such only of the liabilities incurred thereafter by the surviving partners, as are incidental to and necessary for the winding ..... to the same reliefs as a partner willing to retire. till such intimation, the other partners shall have full right of deciding all questions connected with the working of the partnership. channiah, one of the four partners, died in 1971. his legal representative, pramila krishna, readily joined as a partner. in 1973, another partner, bharathi udayabhanu retired by mutual ..... coking coal ltd. : air1990cal96 , kunhabdulla v. union of india  klt 1017, damomal kausomal raisinghani v. union of india : air1967bom355 , minerals and metals trading corporation of india ltd. v. indian metals and ferro alloys ltd. : air1981ori76 , jagat nath wahal v. u. p. state road transport corporation : air1977all83 , and many other decisions. i have no hesitation to hold that this court .....Tag this Judgment!
Court : Kerala
Decided on : Jul-12-1991
Reported in : (1991)97CTR(Ker)153; 197ITR575(Ker)
..... therefore, shall confine to the facts of the case. a reference in this connection to the following excerpt from the judgment is profitable :'... we have read clause (13) of the partnership deed, and we are of the opinion that the said clause supports the conclusions arrived at by the tribunal.'18. the learned judges have also observed that the question involved ..... to show that the finding aforesaid, based on the balance-sheet, is not sustainable. in other words, there is nothing on record to show that, after the formation of the partnership, the properties in dispute were treated as the exclusive property of the assessee in contradistinction to the claim of the firm in regard thereto and upheld by the appellate tribunal ..... in subsequent years because they are made in the exercise of advisory jurisdiction. counsel, in this connection, pressed into service two decisions : one of the allahabad high court in british indian corporation ltd. v. cit : 60itr793(all) and the other of the supreme court in karnani properties ltd. v. cit : 82itr547(sc) . the question thus arising for consideration ..... they may be claimed by the partnership will only benefit those partners who incurred the expenditure' is liable to be rejected. even otherwise, the above argument cannot be accepted because the principle mentioned above cannot be applied to the assessment proceedings under the income-tax act because, under the income-tax act, unlike the english income-tax act, 1952, the firm is an .....Tag this Judgment!