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TMI Blog1985 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 1965-66, 1966-67, 1967-68 and 1968-69. We are disposing of these references together because, although the questions have been referred on seven reference applications, the Income-tax Appellate Tribunal has made a consolidated statement of the case in respect of ail these reference applications. Two brothers, Roulu B. Rau (R. B. Rao) and Yeshwant B. Rao (Y. B. Rao) of Panaji, Goa, were living jointly with their respective wives and children. On July 26, 1959, they executed a document called a public deed which was registered. The parties to the said deed were R. B. Rao and his wife of the first part and Y. B. Rao and his wife of the second part. The said public deed recites that the contracting parties are brothers and lived since many years back under a common roof and in domestic economy in joint family system. The deed then sets out the properties and assets belonging to the joint family. These assets include a cinema house functioning at Panjim and a cinema house functioning in Mapuca. The public deed recites, in connection with these cinema houses, that they are owned by the contracting parties, namely, the joint family, the latter of the cinema houses, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in the said deed as " legitim". On the same day of the deed of dissolution of the joint family, namely, March 13, 1964, a partnership deed was executed between R. B. Rao, Y. B. Rao and the three sons of R. B. Rao and three sons of Y. B. Rao. There were thus eight partners who executed the deed of partnership and the respective wives of R. B. Rao and Y. B. Rao were not parties to the deed of partnership. The partnership deed recites the events which led to the division of assets between the members of M/s. Rao Family Society and the parties to the partnership deed desired to continue to run the aforesaid cinema houses in partnership. The partnership was to come into effect from April 1, 1963. It may be mentioned that in respect of the earlier assessment year 1964-65 for the period from April 1, 1963, to March 13, 1964, the Income-tax Officer concerned had granted the benefit of the Taxation Concessions Order of 1964 to M/s. Rao Family Society which was assessed as an association of persons. In the relevant assessment years, the assessee claimed the benefit of the concession admissible under the Dadra and Nagar Haveli and Goa, Daman and Diu (Taxation Concessions) Order, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fulfil in order to get the benefit of the concession granted by the concessions order were fulfilled in the case of the assessee and the assessee was entitled to the said concession It is from this decision of the Tribunal that the aforesaid questions have been referred to us. It is the submission of Mr. Dhanuka, learned counsel for the Commissioner, that the decision of the Tribunal is clearly erroneous. It was submitted by him that M/s. Rao Family Society which was the body carrying on the business of running the said cinema houses on the appointed day, could not be looked upon as a partnership at all, but was in the nature of a joint Hindu family to which a certain legal recognition was given under the provisions of the Decree of 1880 or the Portuguese Civil Code. It was submitted by him that, in any event, the wives of the two brothers, namely, R. B. Rao and Y. B. Rao, who were members of the said M/s. Rao Family Society and were parties to the aforesaid public deed under which the joint family called M/s. Rao Family Society was claimed to be constituted, were not parties to the deed of partnership dated March 13, 1964, and hence it could not be said that the present asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng made applicable to the Portuguese territory of Goa, Daman and Diu from April 1, 1963. Clause 3 of the Concessions Order contains the scope of the main concessions in relation to income-tax. Sub-clause (ii) of clause 3 of the Concessions Order, inter alia, provides that in order to obtain the benefits of the concession, the assessee claiming the concession must have resided or maintained a dwelling place in Goa, Daman and Diu for a period or periods amounting in all to one hundred and eighty-two days or more during the calendar year 1961 or carried on any business or profession in Goa, Daman and Diu before the " appointed day ". The " appointed day " was fixed as December 20, 1961. In our view, there are two central questions which arise in these references. The first question is whether M/s. Rao Family Society, which carried on the business of running the said cinema houses on the appointed day, was a body which would have been recognised under the Indian Partnership Act or the law of partnership in India as a partnership, had it been functioning in India, and the second question is whether, even assuming that the said body did constitute a partnership as contemplated in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter alone, the question referred to us must be answered against the assessee. Even assuming that M/s. Rao Family Society did constitute a partnership firm, in our view, it cannot be said that the said firm is the same as the assessee-firm before us. The parties to the public deed, under which M/s. Rao Family Society was constituted, according to the assessee, were only R. B. Rao and his wife and Y. B. Rao and his wife. Their sons were not parties to the said public deed at all, whereas in the deed of partnership dated March 13, 1964, which we have referred to earlier, the parties are R. B. Rao and his three sons and Y. B. Rao and his three sons. Thus, the respective sons of R. B. Rao and Y. B. Rao who were not parties to the public deed are parties to the partnership agreement and the respective wives of R. B. Rao and Y. B. Rao who were parties to the public deed are not parties to the partnership agreement dated March 13, 1964. In these circumstances, even if M/s. Rao Family Society was a partnership, it is not the same partnership as the one which is the assessee before us. As regards the identity of the assessee-firm with M/s. Rao Family Society which carried on business in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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