2008 (7) TMI 470

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..... d a copy of the revised deed along with return of income. According to the AO, non-filing of the revised partnership deed will not mandatorily result in assessing the assessee in the status of AOP. The AO held that the revised partnership deed was deliberately not filed by the assessee so as to take the benefit of less tax applicable to AOP. The view of the AO was confirmed by the CIT(A) on the ground that the assessee has filed its return of income in the status of "firm". The assessee is aggrieved and, therefore, in appeal before us. 3. It is the case of the assessee that the AO has erred in assessing the assessee as a "firm" when the provisions of s. 184 relating to filing of a certified copy of the revised instrument of partnership ha .....

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..... ling with furnishing of certified copies of partnership deed, etc., the assessee shall be assessed in the same manner as an AOP. 6. The statutory provisions regarding the assessment of firm explained in a nutshell in the para above makes it clear that the first condition is that an assessee seeking the status of "firm" is to establish that the partnership is evidenced by an instrument and individual shares of partners are specified in that instrument. Once that is satisfied, the second is that the assessee shall file a certified copy of instrument of partnership deed before the assessing authority. Both the above conditions are mandatory to be satisfied by an assessee, seeking status of "firm" for the purpose of assessment. The above prov .....

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..... ence of the failure to comply with the provisions of law contained in s. 184. To put it more literally, it is for the assessee to choose whether to be assessed as a "firm" or to be assessed as an AOP on the constitution of a firm or on the reconstitution of a firm, as the case may be. The intention of the party whether the instrument of partnership was not filed deliberately etc., is not relevant in deciding the issue. If the assessee has satisfied provisions of s. 184, it shall be assessed as a "firm" and if not, it shall be assessed as an AOP. Neither the assessing authority nor the assessee has to go beyond this. 8. Therefore, the reason pointed out by the assessing authority that the assessee has deliberately not filed the certified c .....

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