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TMI Blog1978 (7) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... h the name and style of M/s Saran Engineering Works. Prior to this date, Shri Sukhbir Saran Kargal was doing business in his individual capacity in the above trade name. His father had given him some advances for the purpose of his business and as on 31st day of March, 1972, he was the creditor to Shri Shri Sukhbir Saran Kargal to the extent of Rs. 15,676,80. This credit amount was converted into his capital account with the firm on its constitution. 2. His wife, Smt. Raj Dulari was a partner in M/s B.D. Engineering Works where from she withdrew Rs. 4,000 and gifted the same to her son, Shri Deepak Kumar on 1st day of April, 1972. She also held credit balance of Rs. 23,645 as on 31st day of March, 1972 with Shri Sukhbir Saran Kargal in M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On these facts, the ITO held; (1) That Shri Baleshwar Dayal and Shri Deepak Kumar were not real genuine partners and that they were benamidars of Shri Sukhbir Saran Kargal. (2) that no new funds were brought in by the incoming partners and that the money which was utilised for business of sole proprietary concern remained with the firm as well. (3) That the father of Shri Sukhbir Saran Kargal, Shri Baleshwar Dayal, was more than 60 years of age and had no experience in this line of business; which was carried on by the firm and that, therefore, he was of no help or benefit for the business of the firm. (4) That the assessee firm had failed to explain as to why the partnership deed, the stamped paper of which was procured on31st Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Kumar, not as a creditor of the firm, but as a partner of the firm, that the nature of the two holdings was quite different in law, that the father, Shri Baleshwar Dayal, had a long experience of 40 years to his credits as a contractor and that it was not correct to say that he had brought in no experience to the firm. With regard to the bank account, it was pointed out that even though it continued to be in the name of Shri Sukhbir Saran Kargal, Clause 9 of the partnership deed made it clear that it belonged to the firm. Therefore, nothing turned on the fact that the account was in the name of Shri Sukhbir Saran Kargal. The ITO had observed in his order that the assessee firm had not proved that Shri Deepak Kumar, who was a student, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the date of birth of Deepak Kumar was admittedly22nd Aug., 1954and it was only an after-thought that attempts were made on behalf of Shri Sukhbir Saran Kargal, the erstwhile proprietor of the business styled as M/s Saran Engg. Works to disprove the correctness of the date of birth of Deepak Kumar as entered in the school records by tendering fresh evidence in the form of an affidavit of Smt. Raj Dulari W/o Shri Sukhbir Kargal to the effect that Deepak Kumar was born to her on22nd Aug., 1953and not on22nd Aug., 1954. This affidavit, the contents of which cannot at all be verified has no evidenciary value whatsoever. Similarly the evidenciary value of a copy of the entries in the register of birth of Municipal Board, Muradabad has to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much difficulty,"from municipal records. If the AAC held this belief so strongly, he could atleast have summoned the relevant municipal record and examine whether or not it was maintained in the normal course by the municipal Authorities. Normally the entries in the birth and death register of the Municipal authorities have to be relied upon, unless it can be shown that such entries have been interpolated or tampered with. The affidavit of the mother is categorical with regard to the date of birth of Shri Deepak Kumar and it is further corroborated by the evidence of the Municipal records. We accordingly accept this evidence. As to the fact that the date of birth declared to the school authorities is 22nd Aug., 1954, we have to say that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firm had come into being. It is not the Revenues case, that the agreement, the very basis of partnership on1st Sept.,1972, was not reached with the free consent of the parties concerned, nor that the said agreement had not been acted upon. So long as an agreement of partnership is validly entered into and is genuinely acted upon. So long as an agreement of partnership is validly entered into and is genuinely acted upon, the partnership would be valid and genuine. That only one of the partners was taking interest in the business of the firm would not vitiate the partnership. In fact, Shri Sukhbir Saran Kargal was having 55 per cent of the share in the business of the firm and, therefore, it is not extraordinary if he was taking greater inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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