2018 (9) TMI 141 - AT - Income Tax

Disallowance on claim made u/s 40(b) - whether status of the firm has to be treated as Association of Persons and thus the claim of expenses on interest and remuneration to partners has to be disallowed, under the provisions of section 40(b)? - Held that - Considering the clause of partnership deed it would not ipso facto convert partnership firm as one entered between two Trusts and an HUF. This is because of the reason that in the first part of partnership where the description of parties are given, it is never stated that the parties were representing any Trust or HUF. Even if we take that Shri R. Kumaraveluwas representing an HUF, by virtue of judgment of Apex Court in the case of Rashik Lal & Co. (1997 (12) TMI 2 - SUPREME COURT), he could also be considered as a partner in his individual capacity. - Decided against revenue.

Summary

Issues:
Validity of partnership formation and disallowance of expenses under section 40(b).

Validity of Partnership Formation:
The appeals were filed by the Revenue against the orders of the Commissioner of Income Tax (Appeals) regarding the validity of the partnership formation. The Revenue contended that the partnership firm could not be formed between artificial persons, specifically a Hindu Undivided Family (HUF) and two trusts. The Tribunal had previously upheld the genuineness and validity of the firm in earlier cases for various assessment years. The Departmental Representative acknowledged that the issue was in favor of the assessee based on the Tribunal's previous decision, but mentioned that the matter was taken up before the High Court. The Tribunal reviewed the partnership deeds and clauses to determine the nature of the partnership formation. The Tribunal analyzed the wording of the partnership deeds and concluded that the partnership was not formed between two trusts and an HUF, as contended by the Revenue. The Tribunal referred to the Supreme Court's judgment to support the position that a partnership could be formed between an individual representing an HUF and other partners. The Tribunal emphasized the importance of consistency in decision-making based on established facts and upheld the orders of the Commissioner of Income Tax (Appeals) in favor of the assessee.

Disallowance of Expenses under Section 40(b):
The Revenue argued that expenses claimed under section 40(b) should be disallowed due to the status of the firm being considered as an Association of Persons. However, the Tribunal disagreed with the Revenue's interpretation and emphasized that a partnership could be formed by a karta of an HUF in his individual capacity with other persons. The Tribunal cited relevant case law to support this position and highlighted that the firm had been granted the status of a registered firm for twenty years. The Tribunal noted that the rule of consistency should be maintained unless there are significant changes in facts. Ultimately, the Tribunal dismissed the appeals of the Revenue, upholding the decision of the Commissioner of Income Tax (Appeals) to allow the appeals of the assessee.

In conclusion, the Tribunal dismissed the Revenue's appeals, affirming the validity of the partnership formation and rejecting the disallowance of expenses under section 40(b) based on the established facts and legal interpretations presented in the case.