Court : Kerala
Decided on : Feb-11-1986
Reported in : (1987)59CTR(Ker)300; 160ITR570(Ker)
..... it. where there is no business to be done, there can be no question of partnership. the existence of a business is a ' sine qua non ' of partnership. section 4 of the indian partnership act (9 of 1932) defines ' partnership ' as the relation between persons who have agreed to share the profits of a ..... business carried on by all or any of them acting for all. in mollwo march & co. v. court of ..... wards 10 beng lr 312 (pc), the privy council observed ' to constitute a partnership ..... any business nor was earning any business income does not entail its dissolution, nor is it one of the modes of dissolution contemplated by the partnership act. a temporary cessation of business activity does not result in the annihilation of the firm itself, as contended for by counsel for the revenue ..... to exist for the reason thas it had no business or business income during that period. 10. as per section 39 of the partnership act, 'the dissolution of a partnership between all the partners of a firm is called the ' dissolution of thefirm '.' dissolution can be by agreement of all partners or .....Tag this Judgment!
Court : Punjab and Haryana
Decided on : Jul-14-1986
Reported in : (1986)57CTR(P& H)258; 166ITR143(P& H)
..... in this situation, it cannot be said that the minors were made to share any losses against the provisions of the partnership deed or the provisions of section 30 of the indian partnership act. reference in this regard may profitably be made to the division bench decisions respectively of the calcutta andkerala high courts in ..... losses of the firm would be suggestive of a constitution different from the one specified in such instrument of partnership. though the assessee referred to sub-section (3) of section 30 of the indian partnership act, 1932, for the contention that there is no bar in adjusting the losses of the firm towards the ..... each as capital and share of previous profits besides a share in surplus of compensation when there had been no invalidity in the partnership firm under the provisions of the partnership act ?' 4. a bare reading of the two questions referred at the instance of the revenue would show that the answer to ..... held the order of the income-tax officer erroneous on the ground that chander kant, minor, was shown as a full-fledged partner in the partnership deed executed on july 1, 1966, which was made effective from april 1, 1966, and as such the tribunal was not justified in law in ..... 30 would show that the share of a minor who has been admitted to the benefits of the partnership is liable for the acts of the firm though the minor is not personally liable for any such act. any amount lying in the capital account of the minor could, therefore, be legally utilised to .....Tag this Judgment!
Court : Allahabad
Decided on : Dec-16-1986
Reported in : (1987)61CTR(All)308; 168ITR319(All); 31TAXMAN354(All)
..... the partner concerned as would be apparent from the following passage extracted from the aforesaid judgment (at pages 348 and 349):'section 14 of the indian partnership act, 1932, recognises that, subject to contract between the partners, the property of the firm would include all the property and rights and interests in ..... however, we may repeat here that in the absence of a clause in the partnership deed regulating partners in the share of goodwill, the allocation of goodwill will be determined by section 55 of the indian partnership act which provides that in the absence of a contract to the contrary, every partner ..... right of the outgoing or deceased partner in the goodwill of the firm. the partnership deed is completely silent on this aspect and as such the case would be covered by section 55 of the indian partnership act which provides that every partner, including the deceased partner, shall have a right in ..... shall be entitled to a share in the goodwill like other property of the firm, and it is, therefore, not correct to say that in the absence of a clause in the partnership deed ..... in such a situation, the question of goodwill between the partners was to be decided by mutual agreement or under the general provisions of the partnership act. it held that in the instant case, the continuing partners agreed to pay rs. 50,000 only to the outgoing partner, namely, the deceased .....Tag this Judgment!
Court : Karnataka
Decided on : Mar-31-1986
Reported in : ILR1986KAR1752; 1986(2)KarLJ75
..... that this submission of sri govindaraj is substantial and requires to be accepted. having regard to the provisions of section 25 of the indian partnership act, every partner is jointly and severally liable for the debts of the firm. a partner is a joint promissor within the meaning off section 43 ..... crystallisation of the liability of partners under section 25 of the indian partnership act, and as incident of the general law of joint-liability, are liable for the acts of the firm, and are also liable personally. sri govindaraj submitted that under the indian law all cases of joint liability are cases of joint and several ..... judgment in lukshmishankar v. vishnuram, (1899) 24 bom 77, candy, j., observed at p. 84 that joint liability was the ordinary incident of a partnership and that no one partner could change it into joint and several liability without the consent of the other partners. this decision has no reference to section ..... of the indian contract act which provides that when two or more persons make a joint promise, the promisee may compel any one or more of such joint ..... liabilities and that the partners' liability for the acts of the firm are instances of such joint and .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Apr-04-1986
Reported in : AIR1986SC1009; 1986MhLJ512(SC); 1986(1)SCALE462; (1986)2SCC424; 2SCR182; 1986(2)LC8(SC)
..... . appellant firm instituted a suit against the respondents. on the date of the institution of the said suit the appellant-firm had not been registered under section 69 of the indian partnership act, 1932, and the suit was liable to fail on this technical ground. the appellant firm, therefore, prayed for permission to withdraw the said suit with liberty to file a fresh .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Mumbai
Decided on : Mar-14-1986
Reported in : (1986)16ITD643(Mum.)
..... is mentioned as a party of the first part in the deed of partnership) is described in the opening portion of the said partnership deed as follows : shri narendra l. shah (acting as partner) for and on behalf of indian textile accessories co., the existing partnership concern registered under the indian partnership act, 1932.shri niranjan b. shah and shri surendra l. shah are the ..... persons who have signed the partnership deed for and on behalf of these two ..... companies, respectively. clause 7 which deals with profit and loss sharing ratio is as follows : 7. the profit and loss of the partnership ..... by the individual partner, the karta of the joint family, and by one partner each of the three firms. this deed of partnership was sought to be registered under section 26a of the indian income-tax act, 1922, the application being signed by the same five individuals. the supreme court held that no question could arise of the registration .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Hyderabad
Decided on : Jul-28-1986
Reported in : (1986)19ITD494(Hyd.)
..... deed cause a doubt as regards what the other eight partners agreed to. however, the firm had filed its application under section 58 of the indian partnership act for registration of the firm on 30-3-1981 under rule 5 in form a in the file of the registrar of firms and according to ..... as a full-fledged partner liable to the share of profits and losses and such admission was against the provisions of section 39 of the indian partnership act. the hand bills circulated among the public contained the name of shri dhanasekharan as a partner and shri dhanasekharan being a minor, and yet made ..... the return filed by the assessee, the share of loss has been allocated to shri thanikachalam along with others which was not permissible under the indian partnership act, 1932. it was further made out by the commissioner that though the income computed by the ito in his assessment order dated 22-6-1983 ..... that might follow in the subsequent years in terms of loss of revenue. the mere registration of the firm under the indian partnership act would not automatically lead to registration under the income-tax act - ladhu ram taparia v. cit  44 itr 521 (sc). for reasons stated in the order of the ..... a partner does not appeal to us. in this view of the matter, we are also supported by clause 19 of the partnership deed wherein 'the provisions of the indian partnership act insofar as they are not contained herein' have been adopted. in spite of the specific provision in clause 19 incorporating the .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Delhi
Decided on : Mar-20-1986
Reported in : (1986)18ITD1a(Delhi)
..... by the assessee's reasoning. he rejected the assessee's claim for the status of non-resident, inter alia, for the following reasons that the firm was constituted under the indian partnership act, that the firm had, right from its inception (in the assessment year 1957-58), was claiming the status of resident, that it had given its address as 517, katra ..... 7. the learned commissioner (appeals) has stressed in his order and in our opinion rightly the fact that the assessee-firm is constituted under the indian partnership act, 1932, at delhi and is subject to the provisions of indian arbitration act. it has been, in fact, the position right from the assessment year 1957-58 onwards, when, after the partition of the family business ..... (11) of the deed provided that 'if any dispute arises among the partners it shall be decided under indian arbitration act'. according to clause (12) 'the partnership agreement shall be subject to indian partnership act'.in the preamble of the partnership deed, it was noted that the partners s/shri swinder singh, inder mohan singh and rajinder singh were residents of k-12, hauz khas, new ..... assets, liabilities, incomings and outgoings which were outside india. not even a penny as loan was raised in india. 7. admittedly, partnership deed under which the firm was constituted in india was subject to the provisions of the indian partnership act. the constitution of a firm under a deed executed in india does not lead to the presumption that the business was being .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Hyderabad
Decided on : Sep-09-1986
Reported in : (1986)19ITD1(Hyd.)
..... that case was arrived at but from the facts of that case it should be inferred that it was a lump sum consideration. to this situation section 48 of the indian partnership act was attracted. he pointed out that the bombay high court did not dissent from the gujarat high court in order to say that the andhra pradesh high court preferred to ..... by the partners in this case on different dates, to provide for different occasions, show that they were treating the land as belonging to the partnership. he pointed out relying upon section 14 of the indian partnership act, 1932 that the site on which the theatre was built was always treated as the property of the firm and it is unthinkable that the partners ..... regarded only the superstructure as the assets of the partnership and not the land on which the superstructure was built. placing reliance on the decision of the ..... to any distribution of capital assets upon dissolution of a firm. the bombay high court after examining the provisions of the act, the decisions of the supreme court and the gujarat high court and the views expressed by lindley on partnership, thirteenth edn. at p. 474, held that a retiring partner while going out and while receiving what is due to him .....Tag this Judgment!
Court : Income Tax Appellate Tribunal ITAT Ahmedabad
Decided on : Jan-09-1986
Reported in : (1986)15ITD72(Ahd.)
..... the assessee, on the other hand, strongly supported the order of the commissioner (appeals). in this connection, he referred to section 40 of the indian partnership act, which reads as under: dissolution by agreement - a firm may be dissolved with the consent of all the partners or in accordance with a contract ..... (mad.) also supports the aforesaid views. the meaning of the proviso as contended by shri shah does not get support from any section of the indian partnership act, 1932, nor from any decision relied upon by him. in the case of shivram poddarv. ito  51 itr 823 (sc), their lordships ..... that the proviso inserted with effect from 1-4-1975 would override the provisions contained in the deed of partnership. in this connection, he also stated that even though under the indian partnership act, a firm may not be dissolved on the death of a partner if specific provisions in this regard are ..... contained in the deed of partnership. however, in view of the aforesaid retrospective amendment made in section 187(2) for ..... is for the assessee to prove. the subsequent conduct of the surviving partners cannot overrule the intention and terms and conditions of the original partnership deed by their own acts, conduct and doings.6. on the other hand shri shah, the learned counsel for the assessee, relying on the order of the .....Tag this Judgment!