K. Shivashankar Bhat, J. - (1.) THE question referred to us under the provisions of the Income-tax Act, 1961, reads as follows : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in holding that the minors admitted to the partnership should not be taken into account in finding out whether the number of partners exceeded the maximum number of twenty who would constitute the firm ?"
(2.) THE assessee claimed the status of a firm and filed the returns accordingly. THE claim of the assessee was rejected by the Income-tax Officer on the ground that the number of partners, who constituted the partnership firm, exceeded 20 and, therefore, the partnership cannot be recognised as such and, accordingly, treated the assessee as an association of persons. THE assessee questioned this, contending that the number of persons/who constituted the firm were below twenty excluding the minors who were admitted only to the benefits of the partnership as per section 30 of the Indian Partnership Act. This contention of the assessee was accepted by the Appellate Assistant Commissioner and, accordingly, the appeal filed by the assessee was allowed. THE Appellate Tribunal affirmed this view. Hence, this reference at the instance of the Revenue. Under the provisions of the Indian Partnership Act, a minor cannot be a partner because a minor is not competent to enter into any contract. A minor can only the admitted to the benefits of the partnership. Therefore, the law which enables the formation of a partnership, that is, the Partnership Act does not recognize a minor as a partner at all when a minor is admitted only to the benefits of the said partnership. Consequently, while computing the number of partners, the number of minors who have been admitted to the benefits of the partnership will have to be excluded. This principle was followed by the Allahabad High Court in CIT v. Bhawani Prasad Girdhari Lal and Co. [1990] 186 ITR 518. The Allahabad High Court refers to a decision of the Supreme Court in CIT v. Dwarkadas Khetan and Co. [1961] 41 ITR 528. The relevant observation of the Allahabad High Court is quoted below (at page 520) : "According to section 4 of the Indian Partnership Act, 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. The persons who have entered into partnership are individually called partners and collectively a firm and the name under which the business is carried on is called the firm name. Partnership is, as such, the result of a contract. A minor, not being competent to enter into a contract, is incapable of becoming a partner, although he can be admitted to the benefits of partnership. The Hon'ble Supreme Court in CIT v. Dwarkadas Khetan and Company, [1961] 41 ITR 528 has laid down that in view of section 30 of the Partnership Act, a minor cannot become a partner, although he may be admitted to the benefits of the partnership and a partnership deed, which makes a minor a full-fledged partner cannot be regarded as a valid document for the purpose of registration. Regarding the definition of 'partner' given in section 2(6B) of the Indian Income-tax Act, 1922, which is analogous to section 2(23) of the Income-tax Act, 1961, according to which partner includes a minor who has been admitted to the benefits of partnership, the Hon'ble Supreme Court has observed that : (at page 533) 'What the definition does is to apply to a minor admitted to the benefits of partnership all the provisions of the Income-tax Act applicable to partners..... The definition is designed to confer equal benefits upon the minor by treating him as a partner; but it does not render a minor a competent and full partner. For that purpose, the law of partnership must be considered, apart from the definition in the Income-tax Act'." The said decision of the Allahabad High Court has been affirmed by the Supreme Court in S.L.P. No. 11821 of 1991 decided on July 12, 1991 (see [1991] 191 ITR (St.) 4). We have no hesitation in agreeing with the view expressed by the Allahabad High Court.
(3.) CONSEQUENTLY, the question referred to us is answered in the affirmative and against the Revenue. This reference is disposed of accordingly.;