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TMI Blog1976 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ge him as an insolvent, the Firm should not be closed but on the other hand, it should be continued upto the end of that year ending with 31st Dec., and then the profits and losses should be arrived at upto that period; (8) It is decided to permit to join the firm again the legal representative of such deceased partner as partner provided all the partners give consent therefor;" The partnership continued carrying on its business. On 3rd Aug., 1973 Aswarthanarayanaiah died having left a will. According to the terms of the will his three daughters viz., Smt. Sakunthalamma, Smt. Annapuranamma and Miss. Sobha Devi are to step into his shoes as partners in terms of clauses 7 and 8 of the partnership deed. On 4th Aug., 1973 in the day book en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m till 3rd Aug., 1973 i.e., till Aswathanarayanaiah died. The declaration was also signed by the surviving partners and three daughters who were admitted subsequently on 4th Aug., 1973 on the death of Aswathanarayanaiah. When the assessment proceedings were taken up i.e. on 19th Oct., 1974 the assessee came forward with two returns one for the period 1st Jan., 1973 to 3rd Aug., 1973 and the other for the period 4th Aug., 1973 to 31st Dec., 1973 on the basis that the firm was dissolved on the death of Aswathanarayanaiah and that a new firm came into being from 4th Aug., 1973. The assessee made a request to the Income-tax Officer that it should be treated as a registered firm at least till 3rd Aug., 1973. 2. The Income-tax Officer did not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the partnership deed before us do point out that the firm should not be treated as closed or dissolved on the death of the partner. The business was carried on and the intention of the partners was to continue the firm as such and with that intention the three daughters of the deceased partner Aswathanarayanaiah were taken as partners. We therefore, find that there is no merit in the first contention raised by Mr. Swamy. 4. The second contention raised by Mr. Swamy is that even assuming that there is a change in the constitution of the firm the declaration filed under s. 184 (7) along with the returns of income filed on 2nd Aug., 1974 can be treated in the circumstances as form No. 11-A as all the particulars required in form No. 11-A hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not impressed with that argument since there is no doubt raised regarding the genuineness of the entries. The assessee relied on these entries before the AAC who merely did not accept the contention based on these entries not because the entries are not genuine but because of the view he took. We have no doubt in our minds that the entries in the day book do constitute the instrument of partnership bringing about the change in the original partnership deed. The original partnership deed is already on record as it was filed for the earlier year. The entries in the day book coupled with the original partnership deed would form instrument of partnership relevant for the year under appeal. The language of s. 184 or for that matter the rules f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tically all the particulars required to be furnished in the form No. 11-A have been given. The fact of the death of the partner was intimated. The further fact that three daughters of the deceased partner became partners was also mentioned. In fact all the six persons have signed the declaration under s. 184(7). In effect what the assessee did is only to give particulars required in form 11-A though in fact form 12 was used. 8. The only other question that requires serious consideration is whether the assessee having filed the entries at the time of assessment and not before the end of the previous year should be entitled to ask for condonation of delay. We may repeat here that since we have construed the entries of the day book as instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question is of application of principles to the facts of each case. In the Sri Ramamohan Motor Service case(3) the Supreme Court had occasion to deal with altogether a void clause of the partnership. The Court naturally felt that such a void clause cannot be held to rule. In that connection the observation made by the Supreme Court are to understood. In a case like the present one before us the matter is completely different. There is no doubt about the genuineness of the firm as such nor is there any invalidity attached to the partnership firm. There is some confusion in regard to the actual form to be filed. The matters regarding registration and continuation of registration are so technical that even experts in the field are likely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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