1991 (11) TMI 32 - HC - Income Tax

Summary

Issues Involved:
1. Jurisdiction of the Court
2. Validity of Attachment (Exhibit P-2)
3. Estoppel and Agreement Basis for Deposit
4. Preference of Department's Claim over Liabilities
5. Calculation of Deceased Partner's Share

Issue-wise Detailed Analysis:

1. Jurisdiction of the Court:
The main objection raised was that the court lacked jurisdiction to entertain the original petition. The court analyzed Article 226 of the Constitution, noting that clause (2) allows the exercise of power if the cause of action, wholly or in part, arises within its jurisdiction. The court concluded that the cause of action for the petitioner arose in Cochin, where the notice (Exhibit P-7) was issued, and subsequent correspondence and remittance took place. Thus, the court held that it had jurisdiction to entertain the petition.

2. Validity of Attachment (Exhibit P-2):
The petitioner did not challenge Exhibit P-2, which attached Channaiah's share in the partnership. The court noted that Exhibit P-2 was not pursued further and was only one mode of recovery. The real question was the amount recoverable as Channaiah's share, not the validity of the attachment itself. The court found no fallacy in the petitioner's omission to challenge Exhibit P-2, as it was not pursued further.

3. Estoppel and Agreement Basis for Deposit:
The Department argued that the petitioner was estopped from claiming any amount back as the deposit was made on an agreed basis. The court rejected this, stating that the petitioner was forced to deposit the amount due to the Department's unreasonable stand under section 230A of the Income-tax Act, 1961. The petitioner had always made it clear that the deposit was subject to the right to claim liabilities. The court found that the Department made a unilateral appropriation without observing principles of natural justice, contrary to the understanding between the parties.

4. Preference of Department's Claim over Liabilities:
The Department claimed preference over all liabilities. The court held that the Department could only claim what Channaiah himself could have claimed from his share. The court emphasized that the Department's claim could not have a better standing than Channaiah's share in the firm, which included liabilities incurred before and necessary for the winding-up of the business.

5. Calculation of Deceased Partner's Share:
The court discussed the principles under the Partnership Act and related case law, stating that the share of a deceased partner must be settled after discharging all liabilities of the firm. The court agreed that the liabilities of the firm as on the date of Channaiah's death must be paid first, and only the balance could be divided among the partners. The court noted that the expenses incurred for maintaining and improving the estate after Channaiah's death must also be considered, though this was a factual question for the Income-tax Department to settle.

Conclusion:
The original petition was allowed. Exhibits P-25 and P-29 were quashed. The respondents were directed to settle the accounts considering the liabilities and expenses, and only the net amount due to Channaiah's one-third share should be appropriated towards his income-tax arrears. Any balance was to be refunded to the petitioner-firm within six months. No costs were awarded.