1974 (9) TMI 7 - HC - Income Tax

Summary

Issues involved: Interpretation of sections 187 and 188 of the Income-tax Act, 1961 in a case where a partner of a firm dies and the business is continued by the remaining partners under a new partnership deed.

Judgment Summary:

Issue 1: Application of Section 187 vs. Section 188 of the Income-tax Act

The case involved a firm where one partner died, and the remaining partners continued the business under a new partnership deed. The question was whether the firm should be assessed under section 187 as a reconstituted firm or under section 188 as a successor firm. The Tribunal initially held that section 187 was not applicable, but the High Court disagreed. The Court found that the firm stood dissolved u/s 42(c) of the Indian Partnership Act due to the death of a partner, making it a case of succession u/s 188, requiring separate assessments for the erstwhile firm and the new firm.

Issue 2: Dissolution of Firm and Intent of Partners

The Court considered the dissolution of the firm upon the death of a partner as per the partnership deed and subsequent conduct of the partners. It noted that the partners maintained separate accounts, indicating an intention to treat the new firm as a separate entity. This supported the conclusion that the new firm was a successor firm u/s 188, rather than a reconstituted firm u/s 187.

Separate Judgment by H. N. SETH J.:

Justice H. N. SETH, in a separate opinion, held that section 187 applied to the case where a firm stands dissolved, and a new firm takes over the business with some common partners. He emphasized that separate assessments for the income of the erstwhile firm and the reconstituted firm were required under section 187. Therefore, Justice SETH disagreed with the Tribunal's view and supported the application of section 187 in the case at hand.

In conclusion, the majority opinion of the Court favored the assessee, holding that section 188 applied in this case, requiring separate assessments for the erstwhile firm and the new firm. Due to the unclear legal position, no costs were awarded in the matter.