1971 (2) TMI 5 - HC - Income Tax

Firm - ITO allege violation of provisions ofBihar and Orissa Excise Act by partners - entitlement to registration under section 26A

Summary

Issues Involved:
1. Validity of the partnership under the Bihar and Orissa Excise Act, 1915.
2. Entitlement to registration under Section 26A of the Income-tax Act, 1922.

Detailed Analysis:

1. Validity of the Partnership under the Bihar and Orissa Excise Act, 1915:

The primary issue was whether the partnership formed by the licensees with individuals who did not hold excise licenses violated the Bihar and Orissa Excise Act, 1915, specifically Sections 13 and 47, which prohibit the possession and sale of intoxicants without a license. The Income-tax Officer refused the renewal of the firm's registration, arguing that the partnership deed allowed unlicensed partners to control and manage the excise business, thereby violating the Act. This was upheld by the Appellate Assistant Commissioner and the Appellate Tribunal, which contended that the partnership deed effectively transferred the licenses to unlicensed partners without the requisite permission from the Collector, rendering the partnership void ab initio.

However, upon further examination, the Tribunal found no evidence that the two lady partners ever had control or possession over the excisable articles. The High Court emphasized that the mere formation of a partnership by licensees with unlicensed individuals does not constitute a transfer of the licenses. The partnership deed's provision that management would be in the hands of all partners did not imply possession or handling of excisable articles by the unlicensed partners. The court noted that under Section 42(1)(c) of the Act, a licensee's servant or representative could manage the business without violating the terms of the license, provided the actual handling of excisable goods remained with the licensed partners.

2. Entitlement to Registration under Section 26A of the Income-tax Act, 1922:

The second issue was whether the partnership was entitled to registration under Section 26A of the Income-tax Act, 1922. The department's refusal was based on the argument that the partnership was illegal under the Excise Act. However, the High Court referenced several precedents, including the Supreme Court's decision in Umacharan Shaw and Bros. v. Commissioner of Income-tax, which held that the formation of a partnership by licensees with unlicensed individuals does not amount to a transfer of the license and is not inherently illegal unless there is evidence of actual transfer of control over excisable goods to unlicensed partners.

The High Court also cited Commissioner of Income-tax v. K. C. S. Reddy and Commissioner of Income-tax v. N. C. Mandal and Co., where it was held that there is no express prohibition in the Excise Act against forming such partnerships, and the partnerships were deemed valid and entitled to registration. The court distinguished these cases from those where the partnership resulted in an actual transfer of control over the business to unlicensed partners, such as in Mohapatra Bhandar v. Commissioner of Income-tax and D. Mohideen Sahib & Co. v. Commissioner of Income-tax, which were not applicable here.

In conclusion, the High Court held that the partnership deed did not contravene any provisions of the Bihar and Orissa Excise Act and was not invalid in law. Consequently, the partnership was entitled to registration under Section 26A of the Income-tax Act, 1922. The reference was answered in the affirmative, with no order as to costs.