9911796707
TMI Blog1997 (3) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Court dated November 2, 1977, in T. C. Nos. 147, 146, 171 and 240 of 1974. The appeals have been filed on the basis of certificate of fitness granted by the High Court under section 261 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). The High Court has, however, granted certificate to the Revenue only in respect of the judgment in T. C. No. 147 of 1974 because the questions referred in that case alone were answered against the Revenue. In the other three tax cases the questions referred were answered in favour of the Revenue and certificate of fitness was granted to the assessee. Under a misapprehension appeals have also been filed by the Revenue against the judgment in Tax Cases Nos. 146, 171 and 240 of 1974. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Production commenced on January 1, 1959. The previous year for the assessment year 1960-61 was the period from July 1, 1958, to June 30, 1959. On June 16, 1959, there was a change in the constitution of the firm and two of the partners, viz., Orissa Cement Ltd. and Dalmia Cement Ltd. retired from the firm and Dalmia Cement (Bharat) Ltd., became a partner. In the reconstituted firm, the share of Magnesite Corporation of India Ltd., continued to be one-third while that of Dalmia Cement (Bharat) Ltd. was two-thirds. Under a scheme framed by the Madras High Court by order dated November 16, 1962, in Company Petition No. 46 of 1962, the assets of Magnesite Corporation of India Ltd. came to be vested in Dalmia Cement (Bharat) Ltd., and Magnesite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that there was no mistake apparent from the record in the grant of development rebate and that the Income-tax Officer had no jurisdiction to pass a rectification order under section 155(5) of the Act to withdraw the development rebate allowed therein. At the instance of the assessee, the two questions mentioned above were referred by the Tribunal to the High Court for its opinion. While dealing with the first question the High Court has held that in order that clause (i) of sub-section (5) of section 155 of the Act may be attracted there must be a sale or a transfer of the plant installed by the assessee and that such transfer must be by the assessee and that in the present case it could not be said that there has been a transfer b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s January 1, 1964. In view of the said provision in the scheme Magnesite Corporation of India Ltd., stood dissolved on January 1, 1964. This provision in the scheme is not open to challenge in these proceedings. It must, therefore, be held that on January 1, 1964, only one partner of the assessee-firm, viz., Dalmia Cement (Bharat) Ltd. was left and since a partnership could not continue with one partner the assessee-firm should be treated to have stood dissolved on January 1, 1964. In the facts and circumstances of this case we do not find any infirmity in the impugned judgment of the High Court whereby the two questions referred to it for opinion have been answered against the Revenue on the basis that in view of the special provision fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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