2012 (7) TMI 372 - HC - Income Tax

Genuineness of Assessee firm - held to be Association of Persons u/s 2(31)- the revenue generated by the respondent was passed on to the partners such that no profit accrued to the respondents - Held that - Assessee had not contrived a devise to evade or even avoid tax. The original intention itself was for the consortium members to bid for and perform the contract and to divide the profits arising therefrom among themselves in accordance with the Consortium Agreement. The members of the consortium constituted the firm, not as a devise to evade or even avoid tax, but upon the insistence of the MIDC - the respondent satisfies the requisite tests of a partnership firm constituted in accordance with law - against revenue.

Summary

Issues:
1. Appeal under section 260A of the Income Tax Act against the order of the Income-tax Appellate Tribunal.
2. Determination of whether the Assessee firm is a genuine firm or has the status of Association of Persons.
3. Assessment of whether the provisions of section 40A(2)(b) were rightly invoked by the Assessing Officer.
4. Interpretation of the Consortium Agreement and its impact on the formation of the respondent-firm.
5. Withholding of refund under section 241 pending completion of regular assessment under section 143(3).
6. Allegations of excessive and unreasonable payments made to partners by the respondent.

Analysis:
1. The appellant challenged the order of the Tribunal regarding the status of the Assessee firm. The main issue was whether the firm was genuine or should be considered an Association of Persons under the Income Tax Act, 1961. The Tribunal and Commissioner of Income Tax (Appeals) found in favor of the respondent, holding that the firm satisfied the tests of a partnership firm constituted in accordance with the law. The Court concurred with this finding, noting that the firm was not formed to evade or avoid tax, but as a result of the requirements set by the MIDC. Therefore, no question of law arose in this regard, and the appeal was dismissed.

2. Another question raised was the invocation of section 40A(2)(b) by the Assessing Officer regarding the payments made to partners by the respondent. The appellant contended that these payments were excessive and unreasonable. However, both the Commissioner of Income Tax (Appeals) and the Tribunal found that the payments were not deemed excessive or unreasonable, as the amounts received by the respondent from MIDC were passed on to the partners as per the contractual agreements. The Court agreed with the concurrent findings of the appellate authorities, emphasizing that the payments were not found to be unreasonable or excessive. Therefore, the appellant's contention was dismissed, and no substantial question of law was identified.

3. The formation of the respondent-firm was intricately linked to the Consortium Agreement entered into by the members. The agreement specified the duties, liabilities, and profit-sharing arrangements among the consortium members. MIDC awarded the contract to the consortium, subject to its conversion into a partnership firm. The respondent was constituted as a partnership firm as per the partnership deed, with partners including the consortium members and individuals. The Court considered the circumstances of the formation and the purpose of the firm's establishment, ultimately concluding that the firm's creation was not a tax avoidance scheme but a requirement set by MIDC. Consequently, the Court found no grounds for interference in the impugned order and dismissed the appeal.

4. Additionally, the issue of withholding the refund under section 241 pending the completion of the regular assessment under section 143(3) was addressed. The Court noted the withholding of the refund but did not delve deeper into this aspect as it was not a central point of contention in the appeal. Ultimately, the Court found no substantial question of law arising from the circumstances of the case and dismissed the appeal without costs.