1982 (9) TMI 124 - AT - Income Tax

Summary

Issues:
Determining the correct date of birth of Shri Champalal for the assessment years 1971-72 to 1977-78.

Analysis:
The main dispute in the appeals and cross objections before the Appellate Tribunal ITAT Indore revolved around the date of birth of Shri Champalal, whether it was 22nd April, 1950, or 4th June, 1958. The consequences of this determination would impact the outcome of the appeals and cross objections filed by the revenue and the assessee, respectively.

The facts of the case revealed that the firm, M/s Tulsiram Mathuram, had two partners, Tulsiram and Champalal. The initial registration under section 185 was allowed for certain assessment years, and there was a change in the firm's constitution in a subsequent year. The issue arose when the Income Tax Officer (ITO) re-examined Champalal's date of birth based on a complaint, leading to a discrepancy between the date recorded in the Higher Secondary School Certificate and the birth register maintained by the Indore City Municipal Corporation.

The Assessing Officer (AO) issued a notice under section 186 to cancel the registration and continuation of registration, as he concluded that Champalal was not competent to contract when the partnership deed was executed. However, the Appellate Commissioner (AAC) annulled the AO's order after considering affidavits from Champalal's parents and other evidence supporting the date of birth as 22nd April, 1950.

Before the Tribunal, the department contended that the correct date of birth was 4th June, 1958, as per the Higher Secondary School Certificate. The revenue argued that the date mentioned in the certificate should be presumed correct. On the other hand, the assessee's counsel supported the AAC's decision, emphasizing the affidavits and birth register extract as evidence of the 22nd April, 1950 date of birth.

The Tribunal analyzed the evidence, including affidavits, birth register extracts, and legal precedents. It noted that the birth register entry and affidavits of Champalal's parents were crucial evidence, and the absence of cross-examination or counter-affidavits supported the acceptance of the 22nd April, 1950 date of birth. The Tribunal found that the presumption based on the school certificate was rebutted by the uncontroverted evidence presented.

Ultimately, the Tribunal concluded that Champalal's correct date of birth was 4th June, 1958, based on the preponderance of probabilities and the evidence on record. Consequently, it held that the cancellation of registration by the AO was incorrect, and the AAC's decision to annul the order under section 186 for the relevant years was justified. As a result, all appeals were dismissed, and the cross objections by the assessee were allowed.