2018 (3) TMI 1631 - AT - Income Tax

Addition u/s 40(b) - partnership formed by a karta of an HUF in his individual capacity with other persons - liability of karta - Held that - It is not in dispute that the assessee were granted the status of registered firm by virtue of provisions of Section 185(1) of the Act since assessment year 1991-92. The position continued for a period of twenty years and it was after such twenty years, the Assessing Officer attempted to disturb this. When a set of facts which permeates from earlier years, is consistency. the same, it would not be appropriate to disturb the conclusions reached based on such facts. No doubt, rule of res judicata may not be applicable to the Income Tax proceedings, but the rule of consistency demands that a position consistently taken shall not be disturbed unless there were significant change in facts. In so far as reliance placed on Section 40(b) by AO is concerned, there is nothing in that section to conclude that a partnership could not be formed by a karta of an HUF in his individual capacity with other persons. The same, in our opinion, would also apply where an individual who joins partnership in a representative capacity. It can always be considered that he was doing so in his individual capacity. Appeal stands allowed in the hands of the appellant.

Summary

Issues Involved:
Interpretation of partnership deed involving HUF and trusts, applicability of section 40(b) of the Income Tax Act, status of partnership firm with artificial entities as partners, consistency in assessment of partnership status.

Analysis:
1. Interpretation of Partnership Deed: The main issue in this case revolved around the interpretation of the partnership deed involving a Hindu Undivided Family (HUF) and two trusts as partners in the firm. The Assessing Officer (AO) contended that a partnership firm cannot be formed between all artificial persons. However, the assessee argued that an individual representing an HUF could be a partner, citing a Supreme Court judgment. The Tribunal analyzed the partnership deed and concluded that the partnership was validly formed between individuals in their individual capacities, not as representatives of the HUF or trusts.

2. Applicability of Section 40(b): The AO disallowed certain expenses, including interest paid to partners and remunerations, based on section 40(b) of the Income Tax Act. The section mandates that only an individual can be a partner in a partnership firm. The AO treated the assessee as an Association of Persons (AOP) due to the composition of partners. However, the CIT(A) allowed the appeals based on a previous tribunal decision and upheld the status of the partnership firm as a registered firm.

3. Status of Partnership Firm: The crucial question was whether a partnership could be formed with entities like an HUF and trusts as partners. The Tribunal referred to the partnership deed and highlighted that the partners were individuals, not entities like trusts, as the AO contended. The Tribunal emphasized that even if a person nominated by an HUF joins a partnership, it would be considered a partnership between that individual and other partners, not an AOP. The Tribunal upheld the status of the partnership firm as a registered firm based on consistency in assessment over the years.

4. Consistency in Assessment: The Tribunal stressed the importance of consistency in assessment, especially when a firm has been granted registered status for an extended period. The Tribunal noted that the AO's attempt to disturb the firm's status after twenty years was unwarranted, especially when there were no significant changes in facts. The Tribunal relied on previous decisions and the rule of consistency to dismiss the Revenue's appeals and uphold the CIT(A)'s orders.

In conclusion, the Tribunal dismissed the Revenue's appeals, emphasizing the validity of the partnership deed, the application of section 40(b), the status of the partnership firm, and the importance of consistency in assessment decisions.