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TMI Blog2017 (11) TMI 1605X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case, the Tribunal was justified in holding that the shares of the persons carrying on the business were indefinite and unspecified ?" 2. The assessment year involved in the present reference are assessment years 1984-85, 1985-86, 1986-87 and 1987-88. 3. The facts giving rise to the present reference set out in the statement of case are briefly as under : (a) The applicant-assessee had filed its return of income for the subject assessment years showing its status as unregistered firm (URF). Thereafter, the Assessing Officer issued reopening notices under section 148 of the Act seeking to reopen the subject assessment years. On receipt of the reopening notices, the applicant-assessee filed its return of income showing its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesee had itself disclosed its status as AOP in the return of Income filed consequent to notices issued under section 148 of the Act. Further on examination of the statement made by the members constituting to the applicant-assessee, particularly some of them denying the knowledge of their being partners or knowing their shares in the business of the applicant-assessee. The common impugned order dated March 7, 1993 allowed the appeals of the Revenue while dismissing the appeals of the applicant-assessee 4. It is on the basis of the above facts that we shall now opine on the two questions of law proposed for our consideration. 5. Regarding question A : (a) We note that all the authorities under the Act have concurrently come to a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant-assessee under the caption, "partners name". Thus, the same is indicative of the applicant-assessee being a firm. (c) As against the above, Mr. Bhoot learned counsel for the respondent-Revenue states that from the statement made by the members of the applicant-assessee, it is clear as held by the Tribunal that there is no partnership in existence. This is so as some of the members are not even aware of their shares in the firm or even the name of the firm. In the above view, the Tribunal was justified in holding that the correct status of the appellant-assessee is that of an AOP. (d) It is a settled position in law that a partnership arises out of an agreement/contract between persons to share the profits of the business carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, a document found during the search loosely mentioned the names of its member as partners. This fact will not by itself detract from the sworn statement of the so-called members which clearly indicates that they had not entered into a partnership agreement. (f) Therefore, in the present facts and circumstances and in law, the status of an unregistered partnership cannot be bestowed on the appellant- assessee. The order of the authorities under the Act, i.e., Assessing Officer, Deputy Commissioner of Income-tax (Appeals) as well as the Tribunal holding that the applicant-assessee is an AOP and not unregistered firm is justified. (g) In the above view Question No. A is answered in the affirmative, i.e., in favour of the respondent-Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the order of the Tribunal dated March 7, 1993, it is clear that one of its members namely Mr. Satish Dongare disputes he is a partner and states his father is one and even does not indicate his share. The other member, viz., Mr. Anand Bajirao Meshram clearly states that he not aware of his share in the firm. Thus, in terms of section 167 of the Act the share of the members of AOP are indeterminate at least in part due to the unequivocal statement of Mr. Anand Meshram and Mr. Satish Dongare. In such case the whole of the income of such an AOP is to be taxed at the maximum marginal rate, as being an AOP with indeterminate share. (d) In the above view, the question No. B answered in the affirmative, i.e., in favour of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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