9911796707
TMI Blog2001 (7) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... being pointed out, the assessee furnished a copy of the partnership deed duly certified by all the partners. The Assessing Officer opined that the firm was liable to be assessed as an association of persons for the reason that the mandatory requirement of submitting a copy of the partnership deed duly certified by all the partners along with the return was not complied with. The action of the Assessing Officer was echoed by the Commissioner of Incometax (Appeals). Before us, learned counsel for the assessee contended that this was the case of an existing partnership firm which was brought into existence by way of a partnership deed executed on October 25, 1991. It was further explained that a fresh partnership deed was executed on April 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned departmental representative justified the action of the authorities below while pointing out that there was a clear violation of the provisions of section 184 inasmuch as a copy of the partnership deed not certified by all the partners was filed along with the return of income and the subsequent action of filing a copy of the partnership deed certified by the parties was of no avail. We have considered the rival submissions in the light of the material placed before us and the statutory provisions relied upon. The admitted facts are that the firm came into existence by a partnership deed executed on October 25, 1991, on the basis of which the registration was granted to the firm for the assessment year 1992-93 by virtue of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the instrument of partnership on the basis of which the assessment as a firm was first sought. Sub-section (4) further stipulates that if any change takes place in the previous year, a certified copy of the revised instrument of partnership would be required to be furnished along with the return of income for the relevant assessment year. Section 185 provides that where a firm does not comply with the provisions of section 184, it shall be assessed as an association of persons. A close reading of these sections brings to light that it is incumbent on the part of assessee to furnish along with its return of income, a copy of the instrument of partnership duly certified by all the partners other than the minors if a firm is sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onnection, it will be useful to refer to the Explanation to section 184(2), which reads as under : For the purposes of this sub-section, the copy of the instrument of partnership shall be certified in writing by all the partners (not being minors) or, where the return is made after the dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the legal representative of any such partner who is deceased. No doubt in this Explanation, the word shall has been used to suggest that the copy of the partnership deed attested by all partners except minors is required to be furnished along with the return. We find that the failure to furnish such a copy of the partnersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that by virtue of section 184(2) it was obligatory on the part of the assessee to furnish a copy of the partnership deed duly certified by all the partners along with its return of income for the assessment year 1993-94 if it desired to be assessed as a firm. However, on the facts of the present case, it is noted that the copy of the revised partnership deed certified by the advocate was furnished along with the return of income. The lapse on the part of the assessee was that the deed accompanying the return was certified by an advocate instead of by the partners, on the basis of which the Assessing Officer proceeded to assess it in the status of association of persons. On being pointed out, the assessee furnished another copy of the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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