DIVAN, J. -
(1.) THE question that arises in this special civil application filed under Art. 226 of the Constitution is as
to what is the exact connotation of the words "such individual" occurring in S. 64(1)(ii) of the IT
(2.) THE facts leading to this petition are that the petitioner, who is a citizen of India, is a partner in the partnership firm of M/s Rashmikant & Co. which is carrying on business at New Cloth Market,
Ahmedabad. He is a partner in his individual capacity in that firm. The firm of Rashmikant & Co.
came into existence in S.Y. 2021 and the relevant assessment year for that accounting period is
the asst. year 1966 67. Since that time, the firm of Rashmikant & Co. has been doing business in
cloth uptil now. The constitution of the firm was changed in S.Y. 2027 corresponding to asst. yr.
1972 73. The details of the changes in the constitution of the firm are not material for the purposes of this judgment but no minor child of the petitioner has ever been admitted to the
benefits of partnership in the firm of Rashmikant & Co. and the wife of the petitioner has never
been a partner in the said firm of Rashmikant & Co.
The firm of Rashmikant and Co. has been treated as a registered firm and has been so assessed for the asst. yrs. 1966 67 to 1973 74, both inclusive. The share of the petitioner in the said firm
has been added to the income of the petitioner in the status of an individual by respondent No. 1
who is the ITO in charge of the assessment of the firm of Rashmikant & Co. The order of
assessment for the asst. year 1966 67 in the case of the petitioner in the status of an individual has
been made on January 24, 1969, and similarly, for the subsequent assessment years, orders of
assessment have been made against the petitioner in the status of an individual on different dates.
(3.) APART from the petitioner being a partner in his individual capacity in the firm of Rashmikant & Co., the petitioner is shown as a partner in the firm of M/s Dinubhai Ishvarlal & Co. which is also
carrying on business at the New Cloth Market at Ahmedabad. The petitioner represents the joint
Hindu family consisting of himself, his wife and his sons, so far as the firm of Dinubhai Ishwarlal &
Co. is concerned. This firm of Dinubhai Ishvarlal & Co. came into existence in S.Y. 2003
corresponding to asst. year 1948 49. Subsequently, there were several changes in the constitution
of the firm but what is material to be noted is that the petitioner has been a partner in the firm of
Dinubhai Ishwarlal & Co. since its very inception. On February 6, 1958, a partnership deed has
been executed between the petitioner and the other partner, Ishvarlal Ambalal Patel, who was
none else than the father of the petitioner. The petitioner joined the firm with the funds of his HUF
and in the partnership deed, there was a mention that that firm had come into existence w.e.f.
February 1, 1958. By virtue of this partnership deed, the minor sons of the petitioner, namely,
Bharatkumar and Rashmikant, were admitted to the benefits of the partnership and each of them
was given twenty paise share in a rupee in the profits of the firm of Dinubhai Ishvarlal & Co. Up to
S.Y. 2022, the constitution of the firm continued according to the partnership deed of February 6,
1958. On July 15, 1967, Bharatkumar, the son of the petitioner, became major and he exercised his option of becoming a partner w.e.f. July 16, 1967, and accordingly, a new deed of partnership
was executed on October 21, 1967, between the petitioner, Bharatkumar, and Ishvarlal Ambalal
while Rashmikant Dinubhai, the other son who was a minor, was admitted to the benefits of the
partnership and a share of twenty paise in the profits of the firm was given to him. On February
25, 1970, in S.Y. 2026, Ishvarlal Ambalal died and from February 26, 1970, the petitioner and his son, Bharatkumar, and the wife of the petitioner, namely, Mradulaben Dinubhai, started a new firm
as partners and a new deed of partnership was executed on March 9, 1970. Under this deed of
partnership of March, 1970, Rashmikant Dinubhai who was still a minor was admitted to the
benefits of the partnership, a share of twenty paise having been given to him in the firm.;