9911796707
TMI Blog1980 (6) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... application of the assessee had become infructuous and the same as such is dismissed. For the sake of convenience, we first take up the assessee's appeal No. 111 which pertains to proceedings under s. 185(1)(b). Because the dispute raised by the assessee in this appeal, is identical to dispute in ITA No. 112, the assessee's appeal No. 112 pertaining to quantum proceedings under s. 143(3) shall be disposed of automatically. 3. Briefly to state the facts of the case, it is necessary to give the pedigree table of Shri Shivlal which is as under: Shivlal Kanhayalal wife Mohanlal wife Kamla Devi (No issue) Kanchan Devi Jhanaklal Surendra Kumar Mahendra Kumar Narendra Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in preamble of the said deed mentioned that the firm in question has been doing business of manufacturing and sale and purchase of chemicals and minerals just as magnisium carbonate, sodium sulphate, magnisium sulphate and as per cl. 3 of the said deed mentioned that the main business of the said concern would be manufacturing and sale and purchase of chemical minerals such as magnisium carbonate, sodium sulphate, magnisium sulphate, etc. and any other business the partners like to do; (iv) the firm in question was registered with the Registrar of Firms under the name and style of M/s. Prabhat Chemical Products vide Registrar's certificate dt. 12th Aug., 1974; (v) the status of the firm in question in assessment proceedings for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partners in the assessee-firm in respect of Prabhat Chemicals wherein he was not a partner. He also noticed that goods supplied by the assessee to Prabhat Chemicals are at concessional rates and also noticed that inspite of the terms to price being F.O.R., the assessee incurred certain expenses in respect of items which ought to have been borne by Prabhat Chemicals. On the strength of all the defects summarised above, the ITO did not grant registration to the assessee-firm under s. 185(1)(b) but in course of assessment proceedings under s. 143(3), he elected to frame the assessment on protective basis in the status of unregistered firm and made an addition only of Rs. 7,159 on account of forwarding and freight charges as he observed that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the assessee firm and wherein registration has been accorded by the Revenue. He also filed copies of certain letters produced before the lower authorities in respect of his contention and also a certificate from wife of Shri Jhankarmal to whom rents were paid by the assessee for use of a garage. Taking us through chronologically to the relevant documents and citing the law on the issue, his submission was that the firm in question is genuine and the profits earned by the respective partners are enjoyed by them respectively and by none else. He also vehemently argued that none of the partners of the assessee-firm or those of Prabhat Chemicals were examined by the ITO. Under these circumstances, he prayed that the action of the lower aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has been utilising telephone or premises of M/s. Prabhat Chemicals and allied sister-concerns constituted of certain members from the main family of Shri Shivlal out of whom all the partners in the assessee-firm come would not carry the case of the Revenue any further. In an identical case in ITA No. 447/JP/76-77 reported in 1978 January, Taxation, this Tribunal adjudicated the issue in the following words: "It is correct the telephone charges, rent charges and some electric charges were paid by the assessee-firm on behalf of M/s. R.F.C. but this fact by itself would not go to prove that both the firms are one and the same". 10. The legal requirement under s. 4 of the partnership Act to constitute a partnership in law are ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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