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TMI Blog1933 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with law income-tax was assessed upon the profits and gains of the firm, but the Income-tax authority in Burma did not levy super-tax upon the income of the firm by reason of the provisions of Section 55 of the Act. Now, it was only upon the supposition that the C.T.A.M. Firm Minhla, was a firm duly registered pursuant to the provisions of Section 2(14) of the Act, that the Income-tax Officer was entitled or purported to refrain from levying super-tax upon the firm under Section 55, registration in the manner prescribed under the Act being a condition precedent to the right of the Income-tax Officer to proceed under Section 55. Section 2 (14) runs as follows:- (14) 'Registered firm' means a firm constituted under an instrument of partnership specifying the individual shares of the partners of which the prescribed particulars have been registered with the Income-tax Officer in the prescribed manner . Under R. 2, made pursuant to Section 59 of the Act: Any firm constituted under an instrument of partnership specifying the individual shares of the partners may, for the purpose of Cl. (14), Section 2, Income-tax Act, 1922, register with the Income-tax O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.C.T. Chidambaram Chetty, son of Annamalai Chetty of Alagapuri, near Kottayur, Tirupattur Taluk, Ramnad District, South India, Nattukottai Chetty Caste, Money-lender, and (2) P.L.S.M. Muthukaruppan Chetty, son of Sellappa Chetty of Karaikudi, Tirupattur Taluk, aforesaid caste and profession. We both agreed to carry on money-lending business under the style or vilasam of C.T.A.M, (Ceena Thena Ana Moona) at Minhla, Tharrawaddy District, Burma, and have been carrying on the said business from the month of Panguni, Rowdri year. Now, we hereby agree and bind ourselves to abide and act as follows: (1) The business shall be confined to money-lending and banking only; (2) The capital of the business shall be ₹ 20,010 consisting of three shares each of the value of ₹ 6,670; two of these shares valued at ₹ 13,340 shall be owned by C.T.A.C.T. Chidambaram Chetty (in vernacular) and the remaining one share at ₹ 6,670 shall be owned by P.L.S.M. Muthukaruppan Chetty (in varnacular); (3) each of us may invest in the said firm their respective veynepmam (private funds) in proportion to their shares in the firm, namely, as 2 is to 1; (4) interest for the said veynepmam shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the individual shares of the partners together with a copy is enclosed. I do hereby certify that the profits for the year ending 30th Panguni of Akshaya year have been actually divided in accordance with the shares shown in this partnership deed by way of creditings in account books. Signature in Tamil. Name and address. C.T.A.M. Minhla, Tharrawaddy Dt. Names of the partners in the firm with a share of each in the business: (1) C.T.A.C.T. Chidambaram Chettyar two-thirds share of the profits; (2) P.L.S.M. Muthukaruppan Chettyar one-third share of the profits. Date on which the instrument was executed: 29th July 1922. Date, if any, on which the instrument of partnership was last registered in the Income-tax Office: 7th May 1925. Remarks: I, Chokkalinkam Chettyar, do hereby certify that the informations are correct. (Sd.) C.T.A.M., Power holder, Chokkalingam Chettyar . It is to be observed that the names of the partners appear to be the names of the same two men who were stated to be the partners in the original instrument of partnership, and that in the application no mention is made of the appellant. This application for registration was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la firm, seeing that (whether or not, it ought legally to be regarded as an unregistered firm) they had not, as a matter of fact, been assessed to super-tax :- The Commissioner added:- If the registration of a firm were to be cancelled by the Burma authorities and the profits of the firm were to be subjected by them to super-tax, the question of amending the assessment now complained of would necessarily receive my attention. But as the facts stand at present it appears to me that the petitioner is entitled to no relief . Beasley, C.J., Sundaram Chetty, J., and Stone, J., in the course of their judgment proceeded upon the footing that the appellant was, in fact, a partner of the firm of C.T.A.M., Minhla and observed: We have not got before us here one of the interested parties namely, the other partner. He it was who presented the application through his agent for registration of the firm in Burma and he is thus a person very much interested, and from what we understand about his attitude, he is opposed to the view taken by the petitioner here . It would appear therefore that the learned Judges who decided the reference were of the opinion that the two partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout jurisdiction. A further question arises however, whether the Court is competent to pass a decree for a declaration as prayed by the appellant. On behalf of the respondent it is contended that the present suit is barred by S. 67, Income-tax Act, which runs as follow:- No suit shall be brought in any civil Court to set aside or modify any assessment made under this Act, and no prosecution, suit or other proceeding shall lie against any Government officer, for anything in good faith done or intended to be done under this Act . The learned trial Judge held that the present suit was not within the ambit of S. 67. I agree with him. It is not contended that this is a suit brought to set aside any assessment made under the Act, and although the learned Government Advocate urged that the ultimate object of the appellant in praying for the declaration was to obtain a modification of an assessment under the Act, in my opinion, it cannot reasonably be contended that this suit, in which the relief claimed is merely a declaration that the registration of the instrument of partnership was ultra vires and void, is a suit to modify an assessment made under the Act. In my opinion this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted other relief. Those are questions which may have to be considered by the proper authorities and we express no opinion on them. The result is that the appeal is allowed, the decree from which the appeal is brought set aside, and a decree will be passed for a declaration as prayed. As regards costs, it has been contended on behalf of the second respondent that he was not properly made a party to the proceedings, and ought not to have been impleaded in the suit. The answer appears to be two-fold: (1) that unless the appellant had made him a party to the suit, in the event of the suit succeeding or if he had been dismissed from the suit, there would have been two inconsistent decisions as to the validity of the registration of this instrument; and (2) that in fact the second respondent not only filed a written statement denying the right of the plaintiff to obtain this declaration upon various grounds but he, in fact, contended through his learned advocate that the suit did not lie, and in any event that it possessed no merits and ought to be dismissed. In my opinion, the second respondent was a necessary and proper party to the suit. The circumstances in which this suit is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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