COMMISSIONER OF INCOME TAX Vs. GOPU BALAKRISHNAYYA
HIGH COURT OF MADRAS
COMMISSIONER OF INCOME TAX, MADRAS
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(1.) BEASLEY, C. J. - Two questions have been referred to us. I will deal with the first of them only, viz., Whether on the facts of this case there was a firm in existence against which proceedings for assessment could be taken under Sections 22 and 23.
(2.) THE Income Tax Commissioner in dealing with that question says that that is primarily a question of a fact. With that I entirely agree. He continues that some legal consideration are involved. I do not know where they are. THE facts of the case, so far as the reference before us is concerned, are that this firm ceased to do active business in November, 1931, but there is ample evidence which is contained in a partnership deed (exhibit B) which was produced and also in the resolutions passed by the company on the 20th April, 1932 (Exhibit A) showing that the partners were meeting together and passing resolutions and describing the company as a going concern. Having thus described themselves in resolutions, they did so, as before mentioned, in a partnership deed which is dated the 21st April, 1932. This partnership deed it has been found was got up for the purpose of supporting an application made by the assessees for registration. That application was rejected and in revision the Income Tax Commissioner refused to interfere with the Income Tax Officers order refusing to register the partnership. THE only difficulty which has arisen in this case has been due to the fact that apparently the Income Tax Officer in addition to describing the partnership deed as a bogus one said that there was no partnership in existence. It was not necessary to come to that conclusion at all in order to support his order of refusal to register since it is only firms constituted under an instrument of partnership that are entitled to registration. This clearly was not a firm constituted under an instrument of partnership. THE firm had gone on under an oral arrangement and upon that ground the Income Tax Officer was entitled to reject the application for registration. THE Income Tax Commissioner finds that there was a firm in existence; and we are therefore here dealing with an unregistered firm which upon evidence - and it is certainly evidence of some importance - the Income Tax Commissioner has found to be in existence. THE resolutions passed by the firm itself cannot possibly be ignored. Resolution (2) substitutes the sentence the active business of the Sri Gopalakrishna Oil Mill Company has been discontinued for the sentence already in existence, namely THE Sri Gopalkrishna Oil Mill Company has been dissolved. THErefore, by that resolution it is shown that although the business had been discontinued the partnership had not been dissolved. By resolution No. 5 every member is to take notice of the fact that the firm is still a going concern. That is how it is described in the deed of partnership. Another resolution is resolution No. 7 which afforded ample evidence to the Income Tax Commissioner upon which to hold that there was a partnership which was running. Under these circumstances, the answer to the first question must be in the affirmative. That being so, it is not necessary to answer the second question.
The Income Tax Commissioner will get costs Rs. 250.
RAMESAM J. - I agree.
SUNDARAM CHETTY, J. - I agree.
Reference answered accordingly.
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