1968 (1) TMI 4 - HC - Income Tax

Dissolution of Firm - formation of new firm to carry on the business - held that on account such dissolution of business relief u/s 25(3) was allowable

Summary

Issues Involved:
1. Whether the firm of Merwanji Kola & Co. was entitled to claim exemption under section 25(3) of the Indian Income-tax Act for the period between the end of the previous year and the date of its discontinuance of business.
2. Whether the firm was estopped from claiming that the business was not discontinued in 1931.

Issue-Wise Detailed Analysis:

1. Claim for Exemption under Section 25(3):

The firm of Merwanji Kola & Co. claimed exemption under section 25(3) of the Indian Income-tax Act for the period between the end of the previous year and the date of its discontinuance of business on 31st March, 1948. The department disputed this claim, arguing that the firm was dissolved in 1931 when new partnership deeds were executed, thus discontinuing the business of the old firm. The Appellate Assistant Commissioner supported this view, relying on the partnership deeds and representations made by the firm in a 1933 appeal. However, the Tribunal reversed this decision, concluding that the business of the old firm continued until March 31, 1948, despite changes in the partnership.

The court examined the provisions of the partnership deeds dated 12th October, 1931, and 11th November, 1931. These documents indicated that the old firm was dissolved, and a new partnership took over the movable assets and continued the business. The court emphasized that section 25(3) requires the discontinuance of the business, not the discontinuance of the proprietor or proprietary body. The Tribunal's decision was upheld, as the business of Merwanji Kola & Co. was not discontinued until March 31, 1948, when it was dissolved by a court decree.

2. Estoppel from Claiming Continuation of Business:

The department argued that the firm was estopped from claiming that the business was not discontinued in 1931, based on a statement made in a 1933 appeal. The statement indicated that the old firm was dissolved on 31st March, 1931, and a new firm was formed. However, the court found that this statement did not constitute an admission that the business was discontinued. Instead, it showed that the business continued with the remaining partners.

The court noted that the income-tax authorities failed to distinguish between the dissolution of the firm and the discontinuance of the business. The Tribunal correctly identified this error and concluded that the assessee was not estopped from contending that the business was not discontinued in 1931.

Conclusion:

The court upheld the Tribunal's decision, answering the first question in the negative and the second question in the affirmative. The Commissioner was ordered to pay the costs of the assessee.