9911796707
TMI Blog1970 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... others cannot be assessed. The partnership of Messrs Gill Brothers came into existence on 14th June, 1961, and was registered in the sales tax department on 17th July, 1961. 2.. The assessing officer assessed the petitioner on the finding that supplies of metals were made in the name of Mr. N. S. Gill who happens to be the partner of the firm. He did not examine the matter carefully and did not formulate the points that arose for consideration. 3.. The following points arise for determination: (i) Was there a partnership of three brothers under the name and style of Messrs N. S. Gill during the relevant period, or whether the business so run was in the individual capacity of Mr. N. S. Gill? (ii) Whether the partnership of Messrs Gil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r partnership. Doubtless the first appellate authority did not express his conclusion in the way we have put it, but in essence it was so. 6.. The assessing authorities should not have overlooked the concept of "partnership" as defined in the Partnership Act and the necessary evidence in support of the conclusion that a partnership had come into being. Section 4 of the Partnership Act defines a partnership as relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. The various features relied on by the first appellate authority should be examined in order to come to a finding whether, in fact, there was a partnership or whether an inference as to the existence of partne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been used against the dealer behind his back. In any event, there is no material before us to show that the information gathered by the first appellate authority, in the course of his enquiry, was kept on the record. Mr. Mohapatra, learned Standing Counsel was called upon to file an affidavit that the said materials are on the record. He was not in a position to say whether in fact the materials were kept on the record. 10.. When the matter came up before the Tribunal, he did nothing more than quoting the finding of the first appellate authority. At the instance of the assessee a letter was written by the Executive Engineer that the transactions during the relevant period were made by Mr. N. S. Gill in his individual capacity and not by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice of the assessee and they should have been made a part of the record. In the absence of these procedures, we have no alternative but to hold that the principles of natural justice have been violated and such materials should not have been admitted into evidence without the assessee being given a reasonable opportunity to challenge the same. 12.. Learned Standing Counsel then raised a contention that at no point of time any objection was raised by the assessee that he had no opportunity of knowing those materials. Originally, two questions had been framed by the petitioner. They were as follows: "(a) Whether in the facts and circumstances of this case, the assessment made on the petitioner-firm Messrs Gill Brothers, is valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, were in accordance with law." Judged from this point of view, the admissibility of the evidence collected in the course of the enquiry held behind the back of the assessee would be a question of law coming within the sweep of the second part of the question. In our opinion, the results of the enquiry could not have been utilised against the assessee without his being given a reasonable opportunity of having his say in the matter. 13.. Learned Advocates for the parties say that the case should go back to the Tribunal to make a further enquiry into the matter in the light of the points formulated above. Thereafter the Tribunal would dispose of the case after giving both parties an opportunity to place all materials and to lead evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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