Court : Delhi
Decided on : Feb-29-1984
Reported in : 149ITR202(Delhi)
..... in the constitution, and that separate assessments had to be made for the two periods. the court referred to s. 42(c) of the indian partnership act, 1932, and held that in view of this position under the partnership law, the ito was not entitled to proceed on the basis as if the same firm continued to be in existence throughout the accounting year ..... on law did arise for consideration of the high court. 4. a host of authorities were cited before us to canvass the proposition as to whether the provisions of the partnership act were applicable and whether it was a case of dissolution of the firm or a mere change in the constitution of the firm. the facts in the present case leave ..... with some strangers take over the assets and liabilities of the old firm and carry on the business. the supreme court further observed (p. 627) : 'under s. 40 of the partnership act, 1932, a firm can be dissolved with the consent of all the partners or in accordance with the contract between the partners; under s. 43 a ..... , and the partners were devi sahai, jagdish prasad and bal kishan dass. jagdish prasad was acting for and on behalf of radhey sham trust. this partnership was re-constituted by the deed of partnership dated june 26, 1963, when ram gopal taken in as the 4th partner. the partnership was at will and could be determined by mutual consent of all the parties. it .....Tag this Judgment!
Court : Kerala
Decided on : Mar-30-1984
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 : Andhra Pradesh
Decided on : Nov-29-1984
Reported in : 158ITR773(AP)
..... order in writing refusing to register the firm.' 6. 'firm', 'partner' and 'partnership' are not defined under the income-tax act. but, sub-section (2) of section 2 says that they have the same meaning as assigned under indian partnership act. 7. section 4 of the partnership act defines 'partnership' as : ''partnership' is the relation between persons who have agreed to share the profits of a ..... is seen from this definition that partnership involves an agreement to carry on business. the expression ..... business carried on by all or any of them acting for all.' 8. it ..... the activity is not a business activity. the tribunal held to the contra observing that it comes under 'occupation' within the meaning of section 2(b) of the partnership act. on a reference, it was held by the madras high court that the activity of taking premises on lease, putting up constructions as annexe thereto and letting them out .....Tag this Judgment!
Court : Kolkata
Decided on : Feb-24-1984
Reported in : (1984)41CTR(Cal)64,150ITR469(Cal)
..... firm and the right of a partner in respect thereof is applicable to the instant case. in this connection, it may be mentioned that according to section 14 of the indian partnership act, property of a firm includes goodwill of the business. further, according to section 29(2), if a partner transfers his interest and the transferring partner ceases to be a partner ..... the goodwill passes to the transferee or the legal representatives.24. in the case of cit v. bhupinder singh atwal : 128itr67(cal) , it was observed that 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 a firm as such has no separate rights of its own in ..... his legal representatives will apply to the goodwill as well as to other assets.20. in addanki narayanappa v. bhaskara krishnappa, : 3scr400 , after referring to several sections of the indian partnership act, the supreme court observed as follows (p. 1303) :' from a perusal of these provisions, it would be abundantly clear that whatever may be the character of the property which is ..... to receive the share of the assets of the firm to which the transferring partner is entitled to. it further appears that under the proviso to section 53 of the indian partnership act, in case of dissolution, a partner or his representative may buy the goodwill of the firm and, under section 55(1) of the .....Tag this Judgment!
Court : Rajasthan
Decided on : Dec-05-1984
Reported in : (1985)47CTR(Raj)204; 153ITR150(Raj)
..... ceasing to be partners or one or more new partners being admitted. it deals with cases of retirement of partners and introduction of new partners but the firm under the indian partnership act would continue in such a case. therefore, all that section 187(2) points out is that with the retirement of one or more of the partners, so long as one ..... relevant previous year. on those facts, it was held (p. 526) :' ......that section 187 applies only where a firm is reconstituted in accordance with sections 31 and 32 of the indian partnership act, namely, when a new partner is taken or an existing partner retires with the consent of all the partners or without their consent if the contract of ..... for mr. n. p. gupta, learned counsel for the asses-see-firm.6. the partnership deed dated april 12, 1965, inter alia, provides that the partnership shall be 'at will'. clause (15) of the partnership deed dated april 12, 1965, is as follows :'(15). the provisions of the indian partnership act, 1932, and the statutory modification thereof shall govern the relationship between the partners on the ..... matters not provided for in these presents.'7. section 42 of the partnership act deals with dissolution on the happening of certain contingencies. the relevant part of section 42 is as follows :'section 42. dissolution .....Tag this Judgment!
Court : Andhra Pradesh
Decided on : Oct-09-1984
Reported in : 157ITR247(AP)
..... , unable to accede to the contention of the revenue that the conduct subsequent to the death of subbarao indicated that there was no dissolution of the partnership by virtue of section 42(c) of the indian partnership act on september 3, 1971. 6. learned standing counsel did not fairly advance the plea that if there was a dissolution on september 3, 1971, in terms ..... counsel states that the tribunal failed to consider the impact of the subsequent conduct in arriving at the conclusion that there was a dissolution of the partnership within the terms of section 42(c) of the indian partnership act. 5. in the first place, we are unable to subscribe to the view that the admission of the legal heirs of a deceased partner would ..... urges, reflecting the conduct subsequent to the death of the partner point out to a contract between the partners under the partnership deed dated february 6, 1962, not to dissolve the partnership on the death of any partner putting out of application section 42 of the indian partnership act. according to the learned counsel, even if there was no specific provision in the deed of ..... partnership dated february 6, 1962, it is permissible to draw the necessary conclusion regarding the agreement to the contrary based on the subsequent conduct of the surviving partners and the legal .....Tag this Judgment!
Court : Andhra Pradesh
Decided on : Oct-22-1984
Reported in : 158ITR831(AP)
..... .vinayaka cinema : 110itr468(ap) wherein the contention that in the absence of an agreement to the contrary, firm stands automatically dissolved under section 42(c) of the indian partnership act was accepted. pursuant to that decision. the income-tax appellate tribunal was justified in coming to the conclusion that two separate assessments should be made for the two periods, one ..... the income-tax appellate tribunal allowed the assessee's contention that on the death of a partner, dissolution had taken place within the meaning of section 42(c) of the indian partnership act. accordingly, the assessee's claim for two separate assessments was upheld. being aggrieved against the order of the tribunal, the commissioner has come up in reference. 5. this ..... year relevant to the assessment year under consideration. the assessee claimed that on the death of the partner, there is a dissolution of the partnership firm under section 42(c) of the indian partnership act, inasmuch as the partnership deed executed between the partners did not contain an agreement to the contrary. the assessee, therefore, claimed that two separate assessments should be made ..... the accounting year relevant to the assessment year under consideration. 6. that apart, we may refer to the amendment of section 187 by section 33 of the taxation laws (amendment) act, 1984. a proviso was newly inserted to sub-section (2) of section 187 to the following effect : 'provided that nothing contained in clause (a) shall apply to .....Tag this Judgment!
Court : Delhi
Decided on : Feb-03-1984
Reported in : AIR1984Delhi233; 26(1984)DLT12; 1984(6)DRJ244; 1984RLR402
..... has failed to appear : provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 30 of the indian partnership act, 1982. (2} where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person ..... will not affect a partner who has not been served with summons to appear and answer so far as his property other than the property of the partnership is concerned. obviously, thereforee, the partners in the judgment debtor-firm, in the.instant case, can be proceeded against individually if the conditions laid in ..... tried and determined in any manner in which any issue in a suit may be tried and determined. (4) save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and ..... which reads as under: '50(1). where a decree has been passed against a firm, execution may be granted-- (a) against any property of the partnership; (b) against any person who has appeared in his own name under rule 6 or rule 7 of order xxx or who has admitted on the pleadings ..... decree, too seems to have been obtained. sub-section (4) of section 42 of the code, which has been introduced by code of civil procedure amendment) act 104 of 1976, makes it abundantly clear that the power to grant leave to proceed individually against a person other than those referred to in clauses (b) & .....Tag this Judgment!
Court : Chennai
Decided on : Jan-27-1984
Reported in : 163ITR161(Mad)
..... heir of a deceased partner can claim to have become a partner without the consent expressed or implied of the other. further, under the provisions of section 46 of the indian partnership act, 1932, on the dissolution of a firm, every partner or his representative as against the other partners or their representatives, has the right to have the property of the firm ..... partners and this again is subject to a contract between the partners and the provisions of section 30 of the indian partnership act, 1932. the concept of introduction of a third party into a partnership contemplates the subsistence of a partnership. with reference to a partnership of two persons which stands dissolved on the death of one of them, it can have no application, for there ..... that the assessee has a son and a daughter, who will also be class i heirs along with the assessee under the hindu succession act, 1956. apart from this, the legal impact of the provisions of the indian partnership act, 1932, would also render the claim of the assessee as one not based on any inheritance but relatable one to a contract. on the ..... of two partners which is dissolved on the death of one of them, would only normally be the right conferred by section 46 of the indian partnership act, 1932, referred to earlier. and now we notice a few decisions on the aforesaid facets of the matter. m. t. sughra v. babu : air1952all506 considered the effect of death of .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Delhi
Decided on : Feb-13-1984
Reported in : (1984)8ITD689(Delhi)
..... its bussiness. it is true that the indian partnership act goes further than the english partnership act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, the law in india in that respect being more in accordance ..... clause (a) and sub-clauses (i), (ii) and (iii) of clause (b) of section 48.' having regard to the above discussion, it seems to us clear that 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 ..... comp cas 205, the privy council in para 10 of the judgment observed thus (see also  18 comp cas 209) : before the board it was argued that under the indian partnership act, 1932, a firm is recognised as an entity apart from the persons constituting it, and that the entity continues so long as the firm exists and continues to carry on ..... the partners and in the same ratio, since there was no outsider, hence, no extinguishment of any right.the property of the firm as envisaged in section 14 of the indian partnership act, 1932, becomes a part of the assets of the firm and though a partner has no individual capacity, much less any exclusive right to possess or use the .....Tag this Judgment!