Cit Vs. J.P. Bhatia - Court Judgment

Excerpt:
counsels: dhananjay awasthi, for the revenue in the allahabad high court dr. r.s. chauhan & ghanshyam dass, jj. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orderthis is reference under section 256(1) of the income tax act, 1961 wherein following questions have been referred for our opinion:'1. whether on the facts and in the circumstances of the case, the income tax appellate tribunal was justified in weight to the supplementary deed dated 1-2-1977?2. whether the tribunal was justified in treating the application for registration in form no. 11 as contemporaneous evidence?'2. none appears on behalf of the assessee, heard shri dhananjay awasthi, learned standing counsel for the revenue. in r. c. mitter & sons v. cit : [1959]36itr194(sc) , the apex court has held that if the assessee-firm came into existence on 1-4-1948, under an oral agreement, and an intimation was given to the bank on 15-4-1949, as there was no evidence of creation of partnership firm in the previous, the assessee was not eligible for registration for assessment year 1949-50.3. thus it was held that unless the partnership firm had carried business in accordance with terms of an instrument of partnership which was operative during the accounting year. it cannot claim the benefit of registration as it could not be registered in respect of the following assessment year.4. in the instant case commissioner has set aside the order registration dated 2-9-1977 for assessment year 1976-77 on the ground that there was no evidence as when the firm came into existence prior to assessment year 1975-76. more so return filed on behalf of the firm stood superseded by the return filed by sri j.p. bhatia in the individual capacity.5. in view of the above we answer both the questions in negative i.e. in favour of the revenue and against the assessee.

Judgment:
ORDER

This is reference under section 256(1) of the Income Tax Act, 1961 wherein following questions have been referred for our opinion:

'1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in weight to the supplementary deed dated 1-2-1977?

2. Whether the Tribunal was justified in treating the application for registration in Form No. 11 as contemporaneous evidence?'

2. None appears on behalf of the assessee, Heard Shri Dhananjay Awasthi, learned standing counsel for the revenue. In R. C. Mitter & Sons v. CIT : [1959]36ITR194(SC) , the Apex Court has held that if the assessee-firm came into existence on 1-4-1948, under an oral agreement, and an intimation was given to the bank on 15-4-1949, as there was no evidence of creation of partnership firm in the previous, the assessee was not eligible for registration for assessment year 1949-50.

3. Thus it was held that unless the partnership firm had carried business in accordance with terms of an instrument of partnership which was operative during the accounting year. It cannot claim the benefit of registration as it could not be registered in respect of the following assessment year.

4. In the instant case Commissioner has set aside the order registration dated 2-9-1977 for assessment year 1976-77 on the ground that there was no evidence as when the firm came into existence prior to assessment year 1975-76. More so return filed on behalf of the firm stood superseded by the return filed by Sri J.P. Bhatia in the individual capacity.

5. In view of the above we answer both the questions in negative i.e. in favour of the revenue and against the assessee.