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Aruna and Co. Vs. First Income-tax Officer - Court Judgment

SooperKanoon Citation

Subject

Direct Taxation

Court

Karnataka High Court

Decided On

Case Number

Writ Petitions Nos. 7037 to 7039 of 1988

Judge

Reported in

[1992]196ITR831(KAR); [1992]196ITR831(Karn)

Acts

Income Tax Act, 1961 - Sections 184 and 185

Appellant

Aruna and Co.

Respondent

First Income-tax Officer

Appellant Advocate

 K.R. Prasad, Adv.

Respondent Advocate

 H.R. Raghavendra Rao, Adv.

Excerpt:


.....that the application must be exhaustive of all the lands claimed by the applicant obviously is based on certain purpose and preventing piece meal applications so that there may be consolidated enquiry and hearing by the tribunal competent to decide a particular application and such rule is based on order 2, rule 2 of c.p.c., the above ratio enables the tribunal to consider at a stretch all the lands held by the applicant or any of the family members and whether such lands are tenanted lands or not to see that the applications so filed contain all the particulars of different tenanted lands. the very purport of rule 19 is to file such application in form 7 making a mention of all such properties at a stretch. however the exception provided as per judicial dictum is that, the amendment application should be filed well within the appointed date i.e., 30.6.1979 provided there is a proceeding pending before the tribunal regarding such application being filed and as is clear, second or subsequent applications are not maintainable. .....capacity, the board are of the view that if the partnership is constituted by two or more persons, one or more of such persons may sign the deed in dual capacity without making the partnership invalid. if the income-tax officer grants registration to such a firm which in fact is constituted by five persons only though there are eight partners, as three persons entered into the agreement in dual capacities, he is not going beyond the terms of the document, as he will be granting registration to a firm or eight partners which in fact it is. 3. in view of this categorical statement of law made by the board, i do not think that the view taken by the income-tax officer in this regard is correct as the income-tax officer is bound by the circulars issued by the board. consequently, the notice issued by the respondent at annexure e, dated april 14, 1988, shall stand quashed. petitions allowed. rule made absolute accordingly.4. sri h. r. raghavendra rao, the learned advocate who appears for the respondent is permitted to file vakalath within 8 weeks from today.

Judgment:


S. Rajendra Babu, J.

1. The petitioner is a partnership firm. For the assessment years 1983-84 to 1985-86, it had been granted registration. Subsequently, the Assessing Officer wrote a letter to the petitioner on April 4, 1988 stating that one Muthuswamy who is a partner of a firm is acting in a dual capacity, one as an individual and the other as a representative of the Hindu Undivided family which he represents. Inasmuch as partnership is a contract, there cannot be a contract with himself and therefore, the principle of consensus ad idem is affected and he was of the opinion that no genuine firm came into existence and proposed to cancel the registration from the assessment year 1983-84 onwards. Aggrieved by this action of the Assessing Officer, the petitioner has filed this petition.

2. The central Board of Direct Taxes, while considering the question whether the matter decided by the Bombay High Court in CIT v. Raghavji Anandji and Co. : [1975]100ITR246(Bom) in an identical situation should be taken up in appeal to the Supreme Court of not, stated as follows :

'......As for the relevance of the ratio of such decision to a case of a partnership where more than one person signed the deed in dual capacity, the Board are of the view that if the partnership is constituted by two or more persons, one or more of such persons may sign the deed in dual capacity without making the partnership invalid. If the Income-tax Officer grants registration to such a firm which in fact is constituted by five persons only though there are eight partners, as three persons entered into the agreement in dual capacities, he is not going beyond the terms of the document, as he will be granting registration to a firm or eight partners which in fact it is.

3. In view of this categorical statement of law made by the Board, I do not think that the view taken by the Income-tax Officer in this regard is correct as the Income-tax Officer is bound by the circulars issued by the Board. Consequently, the notice issued by the respondent at annexure E, dated April 14, 1988, shall stand quashed. Petitions allowed. Rule made absolute accordingly.

4. Sri H. R. Raghavendra Rao, the learned advocate who appears for the respondent is permitted to file vakalath within 8 weeks from today.




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