9911796707
TMI Blog1980 (2) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm stood dissolved. The assessee was required by the ITO to file the application in Form No. 11A for grant of fresh registration. The application in Form No. 11A was not filed within time. So the ld. ITO did not grant registration to the firm for the period commencing from 7th Feb., 1971 to 30th June, 1971. He was of the view that form No. 12 was within time. The old firm continued upto 6th Feb., 1971 when Shri Ashok Kumar expired. The ld. ITO consequently made the assessment for two different periods. 3. The successor ITO later on found that the learned ITO wrongly granted continuation of registration for the period from 1st July, 1970 to 6th Feb., 1971. According to him the firm should have been assessed as unregistered firm for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar the firm was not dissolved. According to him, after the death of Shri Ashok Kumar his heir was taken as a partner. The firm continued its business with this new partner and remaining partners were old. So the ld. ITO was of the view that there was change in the constitution of the firm. The ld. ITO was of the view that when there is conflict between the provisions of the IT Act and the Partnership Act, the IT Act would prevail. Thus the ld. ITO was of the view that in the present case Form No. 12 was not to be filed. According to him in the present case provisions of s. 184(7) are not attracted. He was of the view that there was no valid application in form No. 11A and as such the registration should be refused for the whole period. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the ld. counsel, if ITO was of the view that registration was wrongly allowed, he could have invoked provisions of s. 186(1) of the Act. As a matter of fact, the present case is covered by the s. 188 of the Act because after the death of a partner the firm was dissolved. The assessee filed form No. 12 in the first period because in the immediately preceding year continuation of registration was granted to the assessee. It was also contended that whether in the present case there was dissolution of the firm or there was only change in the constitution of the firm, possibly there could be two opinions. According to the ld. counsel, in one year there could be framed two assessments. Reliance was also placed on the decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cl. 12 of the partnership deed, on the death of a partner the firm necessarily will not be dissolved. In order to interpret this clause all the facts and circumstances will have to be examined. In appreciating such facts possibly there can be two opinions. According to the partnership deed, on the death of a partner the firm may or may not be dissolved. In order to decide this point the evidence on record, conduct of the parties and other material will have to be considered. The assessee for the first period filed form No. 12. This fact indicates the intention of the party. According to the assessee, on the death of a partner the firm shall dissolve. It was not the intention, there could be no occasion for the firm to file form No. 12 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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