2003 (9) TMI 17 - HC - Income Tax

1. Whether, does the case fall under section 188 of the Income-tax Act as a case of one partnership firm succeeding another or only a change of constitution within the meaning of section 187(2) when two partners retired and two others were admitted as new partners? 2. Whether, in the light of clause 14 of the partnership deed, the Tribunal is right in law and fact in holding that this is a case falling under section 188 as a case of one partnership firm succeeding another ? - We answer the aforesaid two questions against the Revenue and in favour of the assessee.

Issues Involved:
1. Applicability of Section 188 vs. Section 187(2) of the Income-tax Act.
2. Interpretation of partnership dissolution and reconstitution under the Indian Partnership Act.
3. Legal precedents and their applicability to the case.

Detailed Analysis:

1. Applicability of Section 188 vs. Section 187(2) of the Income-tax Act:

The primary issue was whether the case falls under Section 188 (succession of one partnership firm by another) or Section 187(2) (change in the constitution of the firm) of the Income-tax Act. The respondent-assessee argued that the original partnership firm ceased to exist upon the retirement of two partners and a new partnership was formed, thus invoking Section 188, which mandates two separate assessments. The Assessing Officer, however, treated it as a mere change in constitution under Section 187(2) and made a single assessment.

2. Interpretation of Partnership Dissolution and Reconstitution under the Indian Partnership Act:

The court examined the partnership deeds and relevant clauses, particularly Clause 14 of the original partnership deed which stated that the firm shall not be dissolved by reason of retirement or death of any partner. Despite this clause, the court noted that the partnership deed dated June 14, 1990, was not one of dissolution-cum-reconstitution but a new partnership deed executed by the remaining partner and two new partners. This indicated an automatic dissolution of the original firm by operation of law, leading to the formation of a new firm.

3. Legal Precedents and Their Applicability:

The court referred to several precedents, including the Supreme Court's decision in CIT v. Empire Estate, which clarified that Section 187 applies to a firm that survives upon the death of a partner, provided there is a clause in the partnership deed for continuation. In the absence of such a clause, the partnership dissolves automatically, and any new partnership formed is treated as a successor under Section 188. The court also cited the Supreme Court's decision in CIT v. Seth Govindram Sugar Mills, which emphasized that a partnership ceases to exist if one of the only two partners dies or retires, leading to the formation of a new partnership.

The court elaborated on the distinction between reconstitution and succession, noting that even if the dissolution and formation of a new firm occur simultaneously, it must be presumed that the retirement of partners preceded the formation of the new firm. This principle was supported by decisions from various High Courts, including the Madras High Court in Mavukkarai (N) Estate Tea Factory v. Addl. CIT and the Gauhati High Court in Deorah and Co. v. CIT.

The court concluded that the retirement of two out of three partners resulted in the automatic dissolution of the original firm, and the subsequent formation of a new firm constituted a succession under Section 188. Therefore, the assessment for the year 1991-92 should be made as directed by the Commissioner of Income-tax (Appeals) and the Tribunal, with two separate assessments.

Conclusion:

The court answered the questions of law against the Revenue and in favor of the assessee, affirming that the case falls under Section 188 of the Income-tax Act, requiring separate assessments for the periods before and after the retirement of the partners. The judgment emphasized the importance of adhering to the principles of partnership law and the specific provisions of the Income-tax Act in determining the nature of partnership changes.

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