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TMI Blog1983 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... hat School Leaving Certificate genuine partnership firm came into existence on the basis of partnership deed dt. 10th November, 1969 and, therefore, the said firm was entitled for registration. In spite of having a positive evidence that Shri Parasmal had declared in his personal return of income the share profit of another minor Shri Prakash, who was considered by the ITO as benamidar of Shri Parasmal and (4) That the AAC has erred in holding that two partners S/Shri Ramanalal and Prakash Dalichand were not admitted as full fledged partners, but they were admitted only for the benefits of partnership when in fact nothing is specifically mentioned in the partnership deed that the minors were admitted for the benefits of partnership. 2. The assessee firm is partnership firm consisting of 7 partners including two minors. The partnership firm came into existence on 10th November, 1969 in accordance with the partnership deed entered into between the partners. The partnership firm is dealing in the manufacture of different kinds of mixtures and fertilisers for agriculture purposes. It filed its return of income showing total turnover and gross profits. The ITO computed the income of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to set aside the AAC's order for the reasons stated above, we consider it not necessary at this stage to give our opinion on the main arguments which were made before us by either parties. We would, therefore, refrain form given our decision on these arguments for the present." 5. This appeal was remanded back to the AAC who considered the facts pertaining to the age of Parasmal, firm's genuineness, admission of Ramanlal and Prakash for the benefits of partnership only and not as full-fledged partners. On the basis of the evidence before him the AAC directed the ITO to continue registration to the assessee firm. Thus the department has come in appeal before the Tribunal against the order of the AAC on the grounds mentioned above. 6. Ground Nos. 1 and 2 pertain to correct or incorrect age of Parasmal on the basis of the School Leaving Certificate, genuineness of affidavit of the astrologer, date of birth recorded in the horoscope and the medical certificate. Therefore, both these grounds are dealt with together. The department produced School Leaving Certificate issued by the Maharashtra Education Society's High School Baramati and a confidential letter dt. 8th August, 1975 from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of a child but they did not rely upon the word of the father in this respect. In this connection there is nothing on record that the father of Parasmal submitted such municipal birth certificate to enable the school authorities to enter the correct date of birth in the school register. If that piece of evidence would have come on record then the same would have thrown much light in support of the contention of the ld. departmental representative. There is no doubt where the facilities of recording the date of birth by the municipal authorities are there they are recorded and municipal birth certificates are issued. There is also no doubt that school authorities demand the municipal birth certificate to enter the correct dates of birth of children admitted in the school. But the same facility is not available in every interior part like remote villages in the districts. It is not a case of department that either grampanchayat or concerned Tahsildar of a village where Parasmal was born had issued birth certificate and the same was produced by Parasmal's father before the school authority to enter the date of birth as 29th March 1952. Therefore, this part of argument is not based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the date of birth recorded in the school leaving certificate is to be taken as correct date of birth. It is a second argument that the date of birth is being tried to be changed just to bring Parasmal to the age of majority to justify that there was a major at the time when he entered into partnership deed on 10th Nov., 1969. In the judgement of the Supreme Court it is observed that burden to prove that the age was below lies upon the person who challenges the age. It is submitted on behalf of the assessee firm that the department has not discharged the burden to prove that the school leaving certificate mentioned as 29th March 1952 is correct date of birth and, therefore, probability of correct date of birth as 29th Sep., 1951 cannot be ruled out. The AAC has placed reliance on the medical opinion, affidavits and conduct of the Parasmal's father and his coming form Rajasthan to Baramati and getting admission and his father was guided by the consideration of the minimum age required. It is also argued that father of Parasmal is interested person. It would not be correct to reject the statement of Parasmal's father because he is interested person and without sufficient supporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be founded on good reasons supported by facts. There should be relevancy on ground of opinion. There is nothing on record to come to a conclusion that the medical officer's opinion is equally not founded on good reasons supported by facts before him. 13. Certain entries regarding determination of age from the Sarkar Evidence Act, 12th Edition is pointed out. It is mentioned therein that the age may be proved by various means including the statement of witness of his own age and the opinion of witness as to the age of another period, but when age is in issue constructive method of proof may be required. It is in truth not a certificate but only assertain of opinion of medical officer. From this very nature based on conjucture and cannot be relied upon to determine the exact age of a person medical evidence as to age cannot stand against municipal register of birth properly kept. The ossification of bones test is necessary for determining age. The ossification of bones tests however, is not certain guide for determining age as various factors may hasten or delay osseous changes. Sciagrams are now admitted in proof of age. The ossification test is regarded as a good test for ascert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parasmal declared the share of profit of minor Prakash in his personal return. Minor Prakash was his benamidar and the firm was not entitled to registration in view of s. 185 (1) w.e.f. 1st Jan., 1971; (4) the minor cannot be admitted to the benefits of partnership at the time of formation of a partnership firm. The partnership firm may be brought first in existence and thereafter minors are admitted to the benefits of partnership. As in this case the existence of partnership firm and admission of minors came into effect simultaneously and, therefore, the partnership is illegal, (5) It is department's case that Parasmal was first mentioned as guardian of minor Prakash and later on its as compared with the substituted the name of Dalich and as the guardian. The partnership deed is to be read as a whole and the principle is very well settled on this point. The terms of partnership deed cannot be read in part and cannot be interpreted just to bring out the same meaning than the cumulative effect of meaning of the terms of partnership deed. Whether it is to be mentioned specifically in the partnership deed that the minors are to be admitted for the benefit of partnership only or not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition that the minor shall not be a full partner but shall only be entitled to the benefits of partnership, for he is only securing thereby the conferment of the benefits of partnership on the minor. 16. Assessee's counsel has also placed reliance on the judgement of the Calcutta High Court in the case of National Trading Company vs. CIT (1969) 71 ITR 513 (Cal) in support of the same contention that the partnership deed should be construed as a whole where a question of merely admitting the minors for benefits of partnership and could be registered u/s 26 for the purpose of income is involved. He has cited a judgement of the Andhra Pradesh High Court in the case of Addepally Nageswara Rao and Brothers vs. CIT (1971) 79 ITR 306 (AP) wherein it is held that in order to construe a partnership deed, the entire documents must be read as a whole and a reasonable construction should be placed on it. In a document where several clauses appear, what clauses dominate the document should be found out with a view to ascertain the real intentions of the partners. 17. As against this the ld. Departmental representative has pointed out the decision of the Bombay High Court in the case of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm. It is pointed out that cl. No. 15 of the partnership deed has given extraordinary powers to the guardian as managing authority. As it is noted down that there is no bar to the guardian to take part in the management of the firm to protect and safeguard the interest of minor partners. Therefore, it is not acceptable to hold that because of giving extraordinary powers in the management of the firm to the guardian, the partnership firm is not genuine. 21. Another argument is advanced that a minor partner Prakash was benamindar of Parasmal. This argument is advanced on the ground that there is a positive evidence that Parasmal had declared in his personal return of income including share of profit of another minor Prakash who is considered by the ITO to be benamidar of other partner Shri Parasmal. It is submitted before us that there is nothing to show on record any benami transaction that a partner Parasmal has filed revised return and clarified that by oversight he included the share of profit of Prakash in his personal return of income. This explanation was not accepted by the ITO and he held the view that Shri Prakash was benamindar of Shri Parasmal. Another explanation submit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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