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TMI Blog1985 (1) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... on retail basis. Upto the last date of accounting period for asst. yr. 1980-81 the business was carried on by two partners namely Shri Babulal Zumberlal and Shri Dilip Kumar Babulal having 60 and 40 paise share in the profit. For the accounting period it was claimed that one Uttamchand Babulal was admitted as partner and one Deepak Babulal was initially admitted to the benefits of partnership and later in the accounting period itself made a full-fledged partner. The ITO noticed that the date of birth of Deepak Babulal was 3rd April, 1962. Shri Deepak thus attained majority on 3rd April, 1980. The ITO also noticed that the partnership deed produced before him as subsisting in the accounting period was executed on 28th July, 1980 and was dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a partner but only minor admitted to the benefits of partnership, what is the evidence regarding the same? The ITO noticed that the partnership is silent on the issue and, therefore, the assessee s contentions about the existence of the oral partnership subsequently reduced to writing is not acceptable. In effect, therefore, there was no instrument in writing for a part of the accounting period atleast showing correct position of the various partners and minor admitted to the benefits of partnership. 5. When the matter sent in the first appeal before the AAC, Nasik Range, the AAC endorsed the view of the ITO for reasons given in para 5 of his order. It is the correctness of this decision of the AAC which is challenged in this appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence whatever regarding actual oral partnership alleged to have come into existence except assessee s letter dt. 4th Dec., 1981. Addressed to this letter cannot constitute sufficient evidence and cannot also have retrospective operations. It was further contended that even regarding Uttamchand, it is not clear how exactly he could be considered as genuine partner. In view of the Bombay High Court judgment in Dwarkadas Khetan Co. vs. CIT (1956) 29 ITR 903 (Bom), a partnership contract making a minor full-fledge partner is void and, therefore, the partnership is not entitled to the benefit of registration. Further referring to the preamble of the partnership deed, it was pointed out that the minor has been made a working partner fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of minority but only a provision for relating back of accounts. Such a situation does not arise in this case. Similarly P. M. Syed Mohammed Kannu Co. case deals with a case where there was no dispute about the admission of the minor to the benefits of partnership. On facts it was held that the minor was admitted to the benefits of partnership during the accounting period of his minority. Regarding Ahmedabad judgement of the Tribunal, it was submitted the same requires review because the fact that the minor s status changes on attainment of majority has not been considered. 7. On examination of various facts and arguments we hold that the authorities below are correct in refusing the registration. As rightly pointed out by the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J (Ahd) 244, the fact show that before the minor became a major an earlier instrument in writing showing that the minor is admitted to the benefits of partnership actually existed. In the case before us now it cannot be said that the old partnership continued to be operative and was amended retrospectively. The old partners as mentioned above had only two partners and it is not the contention of the assessee that the old co tract continued until is was replaced by new contract retrospectively. There is thus material difference between the facts of Nathalal Karsandas and the facts of this case as there is no evidence regarding existence of actual oral partnership having constitution which is low claimed and as the clarification made to the I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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