1. The assessee-appellants in these appeals belong to the same group.
The appeals were heard on two dates, viz., 12-11-1990 and 13-11-1990.
ITA Nos. 6614 to 6618/ BOM/89 were heard on 12-11-1990, while ITA Nos.
6619,6620,6621,6622 and 6624/Bom/89 were heard on 13-11-1990. The learned authorised representatives of the assessees made a categorical statement that the speaking orders of the learned lower authorities are in ITA No. 6615/Bom/89 and, accordingly, he addressed the Tribunal in that file. He has placed on the file of the ITAT a paper book (19 pages). Facts and circumstances of the cases, the stand of the assessee and the reasoning of the learned lower authorities are said to be identical. The learned departmental representative, appearing for the revenue, conceded this position to be so. In view of the above, in ITA No. 6615/Bom/89, i.e., in the case of Supreme Corporation, the issue is being discussed and in all other cases the same fate shall follow.
2. The assessment year involved in all the appeals is 1984-85, for which the previous year is claimed to have ended with 31st March, 1984.
The status of all the assessees have been accorded as resident AOP.Assessments have been framed under Section 143(3) read with Section 167 A(2) of the Income-tax Act, 1961. The address of all the assessees, their status and nature of business are also claimed to be the same. It is also claimed that all assessees belong to Somani Group of family.
The assessees claim the status of URF. The issue revolves around the interpretation of the terms of the deed of partnership, which, in the case of Supreme Corporation (ITA No. 6615/ Bom/89), reads as under :- THIS INDENTURE OF PARTNERSHIP made and entered into at Bombay on 25th day of October, in the Christian year one thousand nine hundred eighty three by and between : - 1. SHRI SHREEPRAKASH SOMANI, S/o Nathmalji Somani, resident of Bombay, hereinafter called the Party of the First part and 2. SMT. SARASWATIDEVI SOMANI W/o Shri Nathmalji Somani, resident of Bombay, hereinafter called the Party of the Second part.
(which expression shall unless it be repugnant to the context or meaning thereof shall include their respective legal heirs, executors, administrators, liquidators and assigns).
WHEREAS the parties hereto have mutually agreed to carry on the business of manufacturing and dealing in cloth, yarn, paper, various types of chemicals, cement, steel, commission agents, importers and exporters and also to do any other business or businesses in the name and style of MESSRS SUPREME CORPORATION on and with effect from 10th October, 1983.
AND WHEREAS the parties hereto are now desirous of recording the terms and conditions to write upon which they have agreed to carry on the said business in the partnership.
NOW THIS INDENTURE WITNESSETH AND IT HAS BEEN AGREED BY AND BETWEEN THE PARTIES HERETO AS UNDER :- 1. Firm name: The name of the partnership shall be Messrs Supreme Corporation and the parties hereto shall be at liberty to do the business in any other name or names as may be mutually agreed upon by and between them from time to time.
2. Place of business: The Registered off ice of the firm shall be situated at Laxmi Bhawan 4th Floor, 158/64, Kalbadevi Road, Bombay-400 002 or at such other place or places as the parties hereto may agree upon from time to time.
3. Commencement of business: The business of the partnership has commenced on and with effect from 10th October, 1983.
4. Nature of business: The business of the firm shall be manufacturing and dealing in cloth, yarn, paper, various types of chemicals, cement, steel, commission agents, exporters and importers and the parties hereto shall be at liberty to do any other business or businesses as they may mutually agree upon from time to time.
5. Capital: The capital of the partnership business shall be contributed by all the partners as and when required and in the manner that they may be decided and agreed upon by and between the parties from time to time and interest at such rate as may be mutually agreed upon from time to time shall be paid to each partner on the amounts for the time being standing to the credit of their accounts.
7. The 95% profit or losses or capital of the partnership business shall be divided among the parties in such manner and in such proportion and at such times as the parties hereto may decide upon from time to time. Profit of the partnership business means the profit earned by the firm and whether divided or not and capital of the partnership business means profits of the partnership business accumulated from year to year but excluding the capital contributed by the partners from time to time.
8. The 5% profits or losses of the partnership business shall be divided and apportioned by and between the parties hereto in the following proportions : - 9. Accounts : The accounts of the partnership business shall be kept and maintained and all the transactions of the partnership business shall be entered therein which are usually made in the proper books of account and the books of account shall be kept at the registered office of the firm and any of the partner shall have the right to inspect and examine the same and also to take copies of the same as and when required and that the partnership accounts shall be made up, adjusted and finally settled and closed on 31st December every year. The Profit and Loss Account and Balance Sheet shall be prepared which shall be signed and confirmed by all the partners as correct and such profit and loss account and Balance Sheet shall be accepted by all the partners as final and binding on them. The first accounting of the firm shall be ending on 31st December, 1984.
10. Dissolution not necessary : Death, retirement, insanity, insolvency, etc., of any of the partner shall not dissolve the firm and the remaining partners shall be entitled to carry on the business if the firm of they so desire.
11. Bank Account: The Bank Account or Accounts shall be opened in the name of the firm and shall be operated jointly or severally by any of the partners as they may mutually agreed upon from time to time.
12. Drawings : Each partner shall be allowed to draw such amount per month or at any time for his/her personal expenses or by any other purposes as may be mutually agreed upon by and between them and such drawings shall be debited to their respective capital accounts.
13. Borrowing powers : That none of the partner shall be entitled to take loans and borrow money from banks or from any other parties with or without security unless otherwise mutually agreed by and between them and the amounts so received as loan shall be credited to the account of the creditors in the books of the firm.
(a) Pay his/her separate debts and indemnify the other partners and assets of the firm against the same and all expenses on account thereof.
(b) Forthwith pay all moneys not required for current expenses and cheques and negotiable instruments received by him/her in account of the firm into the partnership firm's account.
(c) Be just and faithful to the other partners and at all time give to such other full information and truthful explanations of all the matters relating to the affairs of his/ her power in carrying on the business for their mutual advantage.
15. That none of the partners shall without the consent of the other partner previously obtained in writing :- (a) Lend any of the moneys or deliver on credit any of the goods of the firm to any person or persons whom the other partners shall have previously forbidden him to trust.
(b) Give any security or promise for the payment of money on account of the firm unless in the ordinary course of business.
(c) Enter into any bond or become bail or surety for any person knowingly cause or suffer to be done anything whereby the partnership property may be endangered.
(d) Mortgage or exchange or otherwise transfer his/her share in the profit of the firm.
(e) Except in the ordinary course of business draw, accept or endorse any bill of exchange or promissory note on account of the firm.
(f) Do or affect any speculative or forward business in any commodity.
Any partner committing any breach of the terms and conditions and stipulations herein contained shall indemnify the other from all losses and expenses on account thereof.
16. Arbitration : That all the disputes and differences whatsoever which shall either during the partnership or after the termination thereof arise between the partners or their respective representatives or between any partner and representatives of the other partners touching these presents or the construction or application thereof, or any clause or thing herein contained on any account, valuation, division, debts or liabilities to be made hereunder or as to any act, deed or commission of any partner as to any other partner under these presents shall be referred to arbitration under the provisions of Indian Arbitration Act then in force.
17. Anything not provided herein touching the partnership shall be decided by mutual consent of all the partners.
18. Notwithstanding anything stated or provided herein the partners shall have full powers and discretion to modify, alter or vary the terms and conditions of this partnership deed in any manner whatsoever they think fit by mutual agreement which shall be reduced to writing and be signed by all the partners and thereupon the said writing shall become an appendage to and part of this deed.
IN WITNESS WHEREOF THE PARTIES HEREINBEFORE MENTIONED HAVE SET AND SUBSCRIBED THEIR RESPECTIVE HANDS THE DAY AND THE YEAR FIRST HEREINABOVE MENTIONED :SHREE PRAKASH SOMANI, in the presence] Sd/of...within named SMT. SARASWATIDEVI SOMANL,] Sd/in the presence of ...
3. Relevant clauses in the deed of partnership, for the purposes of present appeals, are clauses 7, 8 and 9.
According to Clause 7, 95% profit/losses/capital of the partnership business shall be divided among the parties in such manner and in such proportion and at such times as the parties hereto may decide upon from time to time. [Emphasis supplied]. It further stipulates that profit of the partnership business means the profit earned by the firm and whether divided or not and capital of the partnership business means profits of the partnership business accumulated from year to year but excluding the capital contributed by the partners from time to time.
Clause 8 of the deed of partnership provides that 5% profits/losses of the partnership business shall be divided and apportioned by and between the parties in the proportions stipulated therein, which, in this case, is 70% and 30%, Stipulation 9 in the deed of partnership provides for maintenance of accounts.
Stipulation 10 deals with the topic 'DISSOLUTION NOT NECESSARY'. It provides that death/retirement/insanity/insolvency, etc., of any of the partners shall not dissolve the firm and the remaining partners shall be entitled to carry on the business of the firm, if they so desire.
4. With the above feedback of the facts, the issue which merits adjudication is the status of the assessees, i.e., whether it is Association of Persons and taxable as such under Section 167A(2) of the Act or that of Unregistered Firm. The assessee has placed on the file of the Assessing Officer as also the learned first appellate authority written arguments, a copy of which has been provided to the Income-tax Appellate Tribunal and are pages 1 to 4 and 5 to 11 of assessee's paper book. Justifying the stand of the assessee that the partners have agreed to divide the balance profit 95% at a later date for various reasons, the reasons given are : - The stand of the assessee is that the assessee meets the requirements of law in terms of the definitions in the Income-tax Act, 1961 and the Indian Partnership Act, 1932 vis-a-vis the definitions of 'firm', 'partners' and 'partnership'. The stand of the revenue is that charge of tax, qua the assessees have to be under Section 167A inasmuch as shares of the constituents are unknown and the assessee is an Association of persons, not a firm or a partnership.
'(1) Where the individual shares of the members of an association of persons (other than a company or co-operative society) in the income of such association are indeterminate or unknown, tax shall be charged on the total income of the association at the maximum marginal rate.
(2) Where the individual shares of the members of the association of persons (other than a company or co-operative society) in any part of the income of such association are indeterminate or unknown, the income-tax payable by the association shall be the aggregate of- (i) the amount of income-tax calculated on the aforesaid part of the total income, at the maximum marginal rate; and (ii) the amount of income-tax with which it would have been chargeable had the remaining part of the total income been its total income.
(a) "maximum marginal rate" shall have the meaning assigned to it in Explanation 2 below Sub-section (3) of Section 164; (b) the individual shares of the members of an association of persons in the income of such association shall be deemed to be indeterminate or unknown if such shares are indeterminate or unknown on the date of formation of such association or at any time thereafter.
5. In the cases of all the assessees, a negligible part of the profit/losses is to be distributed each year in a ratio/proportion stipulated in the deed of partnership and the balance is to be carried forward/accumulated to be distributed in such manner/in such proportion/at such time as the parties to the deed of partnership may decide upon from time to time.
6. Under Section 4 of the Indian Partnership Act, 1932, 'partnership' is 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. Persons who have entered into partnership with one another are called individually 'partners' and collectively 'a firm' and the name under which their business is carried on is called the 'firm name'.
The parties to a deed of partnership, i.e., the partners expressly have to agree to combine their property, labour, skill or energy as co-proprietors to carry on a business for a profit and to share the profit and losses in stated proportions. If there is a contract like the above, then it presents no difficulty in determining the existence of a partnership relation but where the agreement, which is supposed to evidence a partnership relation, is uncertain in its terms, then it becomes difficult to determine the existence or non-existence of a partnership relation. A part of the uncertainty in determining the relationship could be due to lack of precision in the language to express and in that case it will be subject to the provisions of the Indian Partnership Act, 1932 but when the uncertainty is in terms of clear expression, then the replationship cannot be termed as partnership. In the case of the assessees-appellants, a part of the profits - a very negligible part of the profit - is to be apportioned and the big chunk is subject to uncertainty, since it provides that it shall be divided among the parties in such manner/such proportion and at such time as the parties hereto (to the deed of partnership) may decide from time to time. [Emphasis supplied]. The stipulation dealing with 'dissolution' speaks of that, 'dissolution not necessary'. It provides that death/retirement/insanity/ insolvency, etc., of the partner shall not dissolve the firm and the remaining partners shall be entitled to carry on the business of the firm, if they so desire.
All the above point out to an uncertainly and the thin line between the relationship known as 'partnership' and 'association of persons' is based on this uncertainty only. In the case of an association of persons also, persons join for economic ends but that relationship is not that of 'partnership' because of certain uncertainties.
In the case of these assessees-appellants, certainly there is a combination of persons formed for economic ends, bended together as co-adventurers but the uncertainty mentioned above can term the relationship as 'association of persons' and not 'partnership'.
7. For the above proposition, the ratio of the decision of the Hon'ble Calcutta High Court in the case of B.N. Elias, In re [1935] 3 ITR 408, at page 415 is relied upon. In that case, their Lordships observed that, '. .. that if "association" is intended to denote something different from a company or partnership, it must be judged by its two companions between which it stands and it must denote something where the associates are in the nature of partners.' (The companions referred to by their Lordships are 'company' and 'partnership').
In view of the uncertainty in the deeds of partnership in the cases of the assessee, the association for economic ends cannot be held to be a 'partnership' but an 'association of persons' within the meaning of Section 167A(2) of the Act. I hold accordingly.
8. In the case of CIT v. Laxmidas Devidas [1937] 5 ITR 584, their Lordships of the Hon'ble Bombay High Court have observed and opined as under: - The words "association of individuals" in Section 3 of the Indian Income-tax Act must be construed in their plain and ordinary meaning. They are not ejusdem generis with the word immediately preceding, namely, "firm". The only limit imposed on the words is such as necessarily follows from the fact that the words appear in an Act imposing a tax on income, profits and gains, so that the association must be one which produces income, profits or gains.
Again, the Hon'ble Bombay High Court in the case of Dwarakanath Harisehandra Pitale In re [1937] 5 ITR 716 held that the two brothers who became entitled to certain house properties as 'tenants-in-common' in equal shares under the will of their grandfather and held and managed the properties as joint owners and derived profits therefrom, were, having elected to retain the property and manage it as a joint venture producing income, were assessable as association of persons.
Yet again, the Hon'ble Bombay High Court in the case of Indira Balakrishna, Manager of Estate of Balakrishna Purshotlam Purani v. CIT [1956] 30 ITR 320, held that, "in the case of income, which is received by joint owners of an asset, the question whether they should be assessed as separate individuals in respect of their respective shares in the income, or as an association of persons in respect of the entire income, depends on whether these persons have earned the income by reason of their association or have done any joint act in respect of the property which has resulted in, or helped to produce the income.
The mere fact that they have received the income jointly is not sufficient to make them liable to be assessed as an association of persons". Before the Hon'ble Bombay High Court, the facts of the case were that three co-widows of a deceased Hindu received income from the assets, which they jointly inherited from their husband and which income fell under the heads of income, 'income from property', 'dividends', 'shares in a registered firm', 'interest on deposits' and 'ground rent'. The Income-tax Appellate Tribunal held the status to be 'association of persons'. The Hon'ble High Court held that since the shares of the widows in the property were definite and ascertainable, i.e., 1/3rd share to each widow, the widows could not be assessed as association of persons but as individuals. About other heads of income, their Lordships also held in favour of the assessee with the reasoning that, 'it could not be said that the income was earned by the widows by reason of their association or that they performed any act as an association, which resulted in producing such income or helped in producing the income... '. Here the ratio of the decision in Laxmidas Devidas' case (supra) was held to be no longer good law vis-a-vis applicability of Sub-section (3) of Section 9 of the Act, i.e., where in a property the shares of the persons were definite and ascertainable. However, it was held to be a good law to the extent that it lays down the ratio with regard to the liability of an association of persons to be taxed. This case, as such, was decided in favour of the assessee, since the shares of the widows in the property were definite and ascertainable. The above decision of the Hon'ble Bombay High Court was before the Hon'ble Supreme Court of India and the same is CIT v. Indira Balkrishna [1960] 39 ITR 546. Their Lordships upheld the decision of the Hon'ble Bombay High Court with the reasoning that, ' . .. there was no finding that the three widows had combined in a joint enterprise to produce income and as they had done no act, which had helped to produce the income, it could not be held that they had the status of an 'association of persons' within the meaning of Section 3 of the Income-tax Act. At page 551 of that report, their Lordships opined that, 'associate' means, according to the Oxford Dictionary, 'to join in common purpose or to join in an action'. Their Lordships further opined, 'therefore, an association of persons must be one in which two or more persons join in a common purpose or common action, .
. '. In this decision, their Lordships discussed the decisions in B.N.Ellas' case (supra), Laxmidas Devidas case (supra) and Dwarkanath Harischandra Pitale's case (supra). Upholding the observations in the decision B.N. Ellas' case (supra), their Lordships opined that the above case law correctly laid down the crucial test for determining what is an association of persons. Their Lordships further observed that there was no formula of universal application but it must depend on the particular facts and circumstances of each case as to whether the conclusion be drawn or not about there being an association of persons.
In the case of CIT v. Rupchand Routhmall [1963] 50 ITR 295 (Cal.), a Karta of Hindu undivided family entered into partnership and the contract was not between the family and the other partners but between the Karta individually and the other partners. Prior to that, there was an agreement of partition whereby the mother got a share and from that fact their Lordships inferred and held that there was a general partition and not a partial partition and, accordingly, in view of the above facts it was held that after partition of a Hindu undivided family, there can be a reunion of two or more of its members but such a reunion is a result of an agreement between the persons. A minor is incompetent to contract and, as such, there could not have been a reunion in that case and since the minors were partners in the firm and their shares were also not specified, the agreement of partnership was held to be incapable of registration. In the case of the present assessees also the shares are specific qua a very negligible part of the profits/losses and about the big chunk of profit/losses there is uncertainty, i.e., the shares are not specified but left to imagination, hence it cannot be said on those facts that there was a firm or a partnership in the eyes of law as stood defined in the Indian Partnership Act, 1932 and for income-tax purposes.
To the same effect is the decision of the Punjab High Court (as it then was). It is reported as 58 ITR (Short Notes), page 27. There also, the decision of the ITAT that the assessee-firm could not be registered was held to be correct for non-specification of the shares of the partners.
9. The Hon'ble Mysore High Court (as it then was) was seized of a case where a partnership deed contained a clause that the partners shall be entitled to share the profits and bear the losses in a certain proportion and it was subject to a rider that no partner shall be entitled to withdraw his share of the profits without the consent of the other partners during the first ten years and if any partner retired within the first ten years, he shall not be entitled to any profits. The Hon'ble Mysore High Court held that the relationship amounted to a partnership/firm and it was registrable under Section 26A of the Act with the reasoning that the fact that no partner could, as of right, draw the profits during the first ten years did not mean that there was no agreement to share the profits. All what that clause meant was that the profits had to be accumulated and should remain to the credits of the partners.
In the above case, which authority is in R.V. Gumthannavar v. CIT [1966] 62 ITR 821 (Mys.), the shares were always specified and the only restriction was on non-withdrawal of profits during the first ten years. In the cases of the assessees-appellants, the sharing is of a very negligible part of the profit/losses and the major chunk of profit/losses docs not provide for any division in specified shares but is left to future, i.e., uncertainty. This distinguishes the facts of the assessees' cases with the above decision.
10. In the case of CIT v. R.S. Nikhera Construction Co. [1978] 114 ITR 294 (MP), registration was refused to the assessee but the Hon'ble Madhya Pradesh High Court held in favour of the assessee interpreting Clause 2 of the deed of partnership, which did not provide expressly individual shares of eight partners who constituted the firm but did mention that they belonged to three groups and each was to have l/3rd share in the profits. Another clause, viz., 3 in that case provided that partners of each group would in that proportion bear the losses also. Their Lordships held in favour of the assessee with the reasoning that by implication the partners are entitled to equally share the profits falling to the share of their respective groups. They further relied on the assessment orders in the case of each of the eight partners where the Department itself has assessed the groups as having 1/3 rd share and each partner in the group having equal shares. On page 297 of the said report, their Lordships observed 'no firm can be registered, unless the instrument of partnership specifies the individual shares of the partners in the profits of the partnership.
However, the specification of shares need not be expressed; it may be implied'.
In the case of the present assessees-appellants, sharing of profit/losses is not only not specified qua big chunk but also is left to uncertainty about ratio, division and the lime and distinguishes the facts of the assessees' cases from this decision, since by implications even it cannot be held in favour of the assessee.
11. The assessee has relied on the decision of the ITAT, Chandigarh Bench, as stands reported in 1988, Vol. 40, Taxman - Tax Magazine, item 5, page 34. There, two minor sisters jointly purchased a lottery ticket and won a prize of Rs. 1,00,000 thereon. Relying upon the decision of the Hon'ble Supreme Court as stood in Indira Balakrishnd s case (supra), it was held that the assessment in the status of AOP was illegal, since the winning of prize from a lottery ticket does not involve any enterprise. The reasoning of the ITAT, Chandigarh Bench, as such, was that it was sheer luck that favoured the ticket holder and the winning did not involve any enterprise, hence, the two could not be said to be associates in an enterprise for economic ends. No fault can be found with this decision, since the facts are distinguishable in entirety inasmuch as there was no joint venture.
In the case of CIT v. Bangalore Turf Club Benevolent Fund [1984] 145 ITR 323, the Hon'ble Karnataka High Court observed that, the concept of a 'body of individuals' (BOI) is that there must be a common object among the persons constituting the BOI. It was the case of a turf club benevolent fund. The facts are distinguishable and do not help the assessees.
In the case of CIT v. C. Karunakaran [1988] 170 ITR 426, their Lordships of the Hon'ble Kerala High Court observed that, "a commercial adventure of co-owners of assets with a view to obtaining and dividing the profits among them ordinarily assumes the characteristic of a partnership and is generally so regarded in law. If, however, their relationship falls short of a partnership by reason of any legal infirmity or for whatever cause, their activity in the pursuit of profit may still assume albeit not in the strict legal sense some of the attributes of a firm or partnership and they will be treated as an association of persons for the purposes of assessment".
Yet further, their Lordships observed that, "wherever individuals employ their assets in a joint enterprise with a view to profit, though not as partners, they constitute an association of persons by reason of their common purpose or common action. In such an enterprise, the distinction between a firm and association of persons may often be thin and sometimes very obscure".
On the facts of the assessees' cases, in my considered opinion, this ratio applies inasmuch as, though on the face of it the relationship appears to be that of partnership but in the face of ambiguity and uncertainty about sharing of profits/losses as also the time when these have to be divided, it has to be held not as a 'firm' but as an 'association of persons' and, as held by the Hon'ble Kerala High Court above, the distinction is thin but not obscure. The assessees, as such, have to be assessed as the learned lower authorities have done.
In the case of CIT v. Friends Enterprises [1988] 171 ITR 269 the Hon'ble Andhra Pradesh High Court has observed that, "an association of persons must be one in which two or more persons join in a common purpose or a common action, and as the words occur in a section, which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains". There the income was from betting and taxable as Income from Other Sources under Section 56 of the Act and since five partners have come together and engaged themselves in an organised course of activity to earn income from betting, the Hon'ble High Court held that they were assessable in the status of 'association of persons'. The claim of the assessees about there being a partnership stood negatived.
In the case of CIT v. Har Parshad [1989] 178 ITR 591, the Hon'ble Punjab and Haryana High Court has also held that, 'the expression "association of persons" means an association in which two or more persons join in a common purpose or common action, and as the words occur in a section which imposes a tax on income, the association must be one the object of which is to produce income, profits or gains'.
12. On the facts and in the circumstances of the cases with which the ITAT is seized of, since the individual shares of the members carrying on the business are indeterminate/unknown, tax has to be charged on the total income of the association as provided for under Section 167A(2)of the Act. I hold accordingly, with the result that the impugned orders of the learned lower authorities in each of the cases stand upheld and the appeals fail.