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TMI Blog2013 (2) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... ip firm of 4 partners in this case stood dissolved on 22/02/2008 with the death of Ch. Devadanam unless the partnership deed contained a contract to contrary. Whether the partnership deed expressly or by necessary implication provided continuance of the firm in the event of death of one of the partners is a pure question fact and the same has to be settled by the original authority after giving all the surviving partners as well as the legal heir of the deceased partner a reasonable opportunity of adducing evidence The Commissioner (appeals), albeit without the power of remand, took the correct view that the matter required to be readjudicated. Therefore, uphold the reason recorded by him for sending the case to the original authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. Devadanam 40% Rs.13,681/- 2. Shri Mattayya 20% Rs.6,840/- 3. Shri Hanumantarao 20% Rs.6,840/- 4. Shri Sreeram 20% Rs.6,840/- 3. One of the partners, viz. Shri Ch. Devadanam had passed away on 22/02/2008 i.e. before issue of the show-cause notice and, therefore, a reply to the notice was filed by his son and legal-heir Shri Ch. Lazarus. Obviously, the adjudicating authority presumed continuance of the partnership firm and proceeded to determine its tax liability in terms of the show-cause notice. The son of the deceased partner of the firm challenged the order-in-original before the Commissioner (Appeals) and the latter remanded the case to the adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 188 (SC)] wherein it had been held that the power of remand by the Commissioner (Appeals) had been taken away by Parliament by amending Section 35A of the Central Excise Act w.e.f. 11/05/2001. The learned Additional Commissioner (AR) reiterates the above sole ground of the Department's challenge to the appellate Commissioner's order. Further, it is submitted that, as per Section 42(c) of the Partnership Act, if one of three or more partners of a firm dies, the firm stands dissolved unless there is a contract to the contrary. However, for want of any copy of the partnership deed, he not in a position to say for certain whether the partnership firm in the present case survived or not beyond 22/02/2008. It is his submission that this is a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d beyond the date of death of his father and, therefore, the tax liability has to be fastened to the firm as rightly held by the original authority. The learned Commissioner (Appeals) ought not to have remanded the case to the lower authority inasmuch as he did not have that power. We are not in a position to presume acts. Facts have to be clearly pleaded and proved. The basic question of fact emanating from the above submissions is whether the partnership firm stood dissolved on 22/02/2008 or continued thereafter. Any deed of partnership is not forthcoming. This is a question, therefore, to be addressed by the original authority. This equipment also flows from the view taken by the Hon'ble High Court the case of Sherally Meherally Sons ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atives of the deceased partner joins in the business later, it should be referable to a new partnership between them." The above ruling of the Hon'ble Supreme Court, which was followed by the Hon'ble Bombay High Court in the case cited before, requires to be followed in the present case as well. Accordingly, it has to be held that the partnership firm of 4 partners in this case stood dissolved on 22/02/2008 with the death of Ch. Devadanam unless the partnership deed contained a contract to contrary. Whether the partnership deed expressly or by necessary implication provided continuance of the firm in the event of death of one of the partners is a pure question fact and the same has to be settled by the original authority after giving all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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