9911796707
|
Home
Issues Involved:
1. Whether the renewal of the firm's registration for the assessment year 1959-60 should have been granted under section 26A of the Indian Income-tax Act, 1922. Detailed Analysis: 1. Background and Facts: The assessee is a partnership firm constituted by a registered deed of partnership dated March 28, 1958, with the primary objective of conducting a money-lending business. The firm consisted of five partners with specified profit and loss sharing ratios. The firm was initially registered for the assessment year 1958-59. For the assessment year 1959-60, the firm applied for renewal of registration, disclosing a net loss of Rs. 81,933, which was purportedly divided among the partners as per a loose typed sheet. 2. Income-tax Officer's Decision: The Income-tax Officer rejected the renewal application on July 28, 1960, citing improper division of the loss. The officer noted that the loss was not recorded in any formal books of account but on a loose sheet of paper, and the resultant effect of the trade was not credited or debited to the individual accounts of the partners as required by law. 3. Appellate Assistant Commissioner's Decision: The Appellate Assistant Commissioner upheld the Income-tax Officer's decision, emphasizing that the terms of the partnership deed presupposed the maintenance of proper accounts. The absence of such accounts indicated that the partnership did not exist in conformity with the deed's conditions. 4. Income-tax Appellate Tribunal's Decision: The Tribunal also rejected the assessee's application, agreeing with the department's finding that the loss was not actually distributed among the partners as required by the Income-tax Rules. The Tribunal noted that the losses were not debited to the personal accounts of the partners, nor was there any indication that the partners brought in cash to cover their share of the loss. 5. Legal Provisions and Interpretation: The main legal question was whether the renewal of registration under section 26A of the Act was rightly rejected. Section 26A(1) allows a firm constituted under an instrument of partnership specifying individual shares of the partners to apply for registration. The application must be in the prescribed form, verified, and submitted before the income assessment for the year. Rule 6 provides for the renewal of the certificate in subsequent years. 6. Examination of Partnership Deed: Clause (8) of the partnership deed required a statement of profits and losses at the end of each year, with partners at liberty to withdraw their share of profits. The assessee prepared a statement showing the distribution of the total loss among the partners, which was debited to their accounts. However, the Tribunal insisted that the loss should have been debited to personal accounts of the partners, which was not done. 7. Assessee's Argument: The assessee argued that for registration purposes, it was sufficient to file an application in accordance with section 26A and the rules, and to certify the division of profit or loss. The department should not insist on a particular mode of accounting at this stage. The assessee relied on the Supreme Court decision in Commissioner of Income-tax v. Sivakasi Match Exporting Co., which held that the Income-tax Officer could not reject an application if it conformed to the rules and the firm was genuine. 8. Supporting Case Law: Several High Court decisions supported the assessee's position that the right to employ a particular mode of accounting could not be questioned in an application under section 26A. These included decisions from the Patna, Andhra Pradesh, Bombay, and Madras High Courts, which emphasized that the department's discretion to refuse registration was not unfettered and must conform to the provisions of section 26A and the rules. 9. Conclusion: The Tribunal's findings did not dispute the genuineness of the partnership or the conformity of the application with the rules. The losses were divided according to the partners' shares and shown in the account sheet. A certificate declaring the division of losses was filed, and the typed statement showed the distribution of the loss. Therefore, the application for registration was in order, and the registration should have been renewed for the assessment year 1959-60. Judgment: The question was answered in the affirmative, holding that the registration of the firm should have been renewed for the assessment year 1959-60 under section 26A, read with the Rules made under the Indian Income-tax Act, 1922. The department was directed to pay Rs. 250 towards the costs of the reference.
|
