1992 (3) TMI 114 - AT - Income Tax

Summary

Issues Involved:
1. Whether the case pertains to a change in the constitution of the firm under section 187(2) of the Income-tax Act, 1961, or a succession of one firm by another under section 188 of the Act.
2. Validity of the Commissioner's order under section 263 of the Income-tax Act, 1961, cancelling the separate assessments made by the Income-tax Officers.

Issue-Wise Detailed Analysis:

1. Change in Constitution vs. Succession of Firms:
The primary issue in this case is whether the dissolution of the old partnership firm and the formation of a new firm constitutes a change in the constitution of the firm under section 187(2) or a succession of one firm by another under section 188 of the Income-tax Act, 1961.

The facts reveal that the original partnership firm, M/s. Babulal Chandak, consisting of four partners, was dissolved on 21-10-1987 by mutual agreement, as evidenced by the Deed of Dissolution dated 7-11-1987. Subsequently, two of the erstwhile partners, along with a new partner, formed a new partnership firm under the same name on 22-10-1987. The Commissioner of Income-tax (CIT) viewed this as a mere change in the constitution of the firm, invoking section 187(2), and cancelled the separate assessments made by the Income-tax Officers.

However, the Tribunal found that the dissolution was genuine, evidenced by the Deed of Dissolution and other documents, including the registration with the Registrar of Firms and intimation to the Indian Overseas Bank. The Tribunal relied on the Supreme Court's observations in Wazid Ali Abid Ali v. CIT [1988] 169 ITR 761 and the Delhi High Court's decision in CIT v. Sant Lal Arvind Kumar [1982] 136 ITR 379, which held that section 187 applies only when a firm continues to exist in the eye of law, not when one firm ceases to exist and another comes into existence. The Tribunal concluded that the case was one of succession under section 188, not a mere change in constitution under section 187(2).

2. Validity of the Commissioner's Order under Section 263:
The second issue concerns the validity of the CIT's order under section 263, which cancelled the separate assessments made by the Income-tax Officers on the grounds that they were erroneous and prejudicial to the interests of the revenue.

The Tribunal noted that the old firm was dissolved by mutual agreement, and the new firm was formed with a new partner, maintaining separate books of account and profit-sharing ratios. The Tribunal found that the separate assessments made by the Income-tax Officers were in line with the provisions of section 188, which deals with the succession of firms. The Tribunal held that the CIT was not justified in cancelling the assessments and directing the clubbing of incomes, as the assessments were neither erroneous nor prejudicial to the interests of the revenue.

The Tribunal emphasized that the genuineness of the dissolution and the formation of the new firm was not in dispute, and the separate assessments were correctly made based on the separate returns filed by the two firms. The Tribunal, therefore, cancelled the CIT's order under section 263 and restored the separate assessments made by the Income-tax Officers.

Conclusion:
The Tribunal allowed the appeal, holding that the case was one of succession under section 188 of the Income-tax Act, 1961, and not a mere change in the constitution of the firm under section 187(2). Consequently, the separate assessments made by the Income-tax Officers were upheld, and the CIT's order under section 263 was cancelled.