1971 (12) TMI 16 - HC - Income Tax

Firm - death of a partner - partnership deed provides that death of a partner will not dissolve the partnership - A change in the constitution of the firm normally mean every alteration in the set up of the firm, namely, death, retirement, incapacity of partners, etc. Thus there was a change in the constitution of the assessee firm on the death of the partner - petitioner is not entitled to any order in this application. The application, therefore, fails and is accordingly dismissed

Summary

Issues Involved:

1. Change in the constitution of the firm.
2. Validity and propriety of the Income-tax Officer's order dated 17th March 1969.
3. Legality of the Appellate Assistant Commissioner's order.

Detailed Analysis:

1. Change in the Constitution of the Firm:

The primary issue was whether the death of a partner, Heramba Nath Bhattacharjee, constituted a change in the constitution of the firm. The petitioner argued that the partnership deed dated 17th July 1961, stipulated that the partnership would not be dissolved upon the death or retirement of a partner. Clauses 3 and 4 of the deed indicated that the business would continue without dissolution. However, the court held that these clauses did not negate a change in the constitution of the firm. The court reasoned that the expression "change in the constitution of the firm" must be understood in its ordinary meaning unless the context suggests otherwise. The death of a partner typically signifies a change in the firm's constitution, as supported by section 187 of the Income-tax Act, 1961, which acknowledges changes in the firm's constitution due to events like death or retirement of partners.

2. Validity and Propriety of the Income-tax Officer's Order:

The Income-tax Officer refused registration on the grounds that the firm had not submitted the original instrument of partnership deed during the accounting year following the death of a partner. The petitioner contended that the order was improper as it was based on section 184(4), which pertains to applications for registration, whereas the firm had only submitted a declaration for continuation of registration. The court noted that section 184(7) does not necessitate a separate order for continuation of registration but requires the firm to comply with certain conditions. The court found that the refusal of registration was justified as there was indeed a change in the constitution of the firm due to the partner's death and the declaration was not signed by all partners, thus not complying with the legal requirements.

3. Legality of the Appellate Assistant Commissioner's Order:

The petitioner appealed against the Income-tax Officer's order, but the Appellate Assistant Commissioner dismissed the appeal, stating that an order under section 184(4) is not appealable under section 246 of the Income-tax Act. The court upheld this decision, asserting that the Appellate Assistant Commissioner's order was in accordance with the law. The court clarified that the proper procedure for contesting the Income-tax Officer's findings would have been through an appeal against the assessment order, where the validity of the registration refusal could be challenged.

Conclusion:

The court concluded that the petitioner was not entitled to any relief, dismissing the application and discharging the rule nisi. The interim order was vacated, and no costs were awarded. The court also granted a stay of operation for four weeks after the Christmas vacation.