9911796707
TMI Blog1986 (1) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... t the deed of partnership is an invalid document and hence registration under section 185 of the Incometax Act, 1961, cannot be granted ? " The facts as found from the statement of the case in the various orders of the Income-tax Officer and the Assistant Commissioner of Incometax may be briefly stated. The assessee was a firm comprising of four partners. The Income-tax Officer refused registration to the assessee-firm, vide order passed in annexure A for the assessment year 1967-68, annexure A-1 for the assessment year 1968-69 and annexure A-2 for the assessment year 1969-70. The Income-tax Officer has pointed out in annexure A that the partnership has been constituted under a deed of partnership executed on September 10, 1966. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion as to why the assessee was treated as unregistered firm for the assessment year 1968-69. However, from the order of the Appellate Assistant Commissioner, in annexure B, it appears that in the assessment year 1968-69, one of the objections was that the status has been wrongly taken as unregistered firm. The Appellate Assistant Commissioner held that as the firm had been allowed registration in the earlier year and the declaration under section 184(7) of the Act was enclosed with the return in this year, the firm should be treated as a registered firm. As regards the appeals against the orders under section 185 of the Act regarding the assessment years 1967-68 and 1969-70, the Appellate Assistant Commissioner disposed of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question. The two orders of the Appellate Assistant Commissioner are annexures B and B-1 forming part of the statement of the case. The Department appealed before the Tribunal for all the three assessment years and the Tribunal passed a consolidated order, vide annexure C. The Tribunal pointed out that according to the affidavit of the father, the date of birth of Sajjan Kumar Agarwala was June 27, 1946, while according to the family priest, the date of birth was June 27, 1947. It appears from the order of the Appellate Assistant Commissioner that the father of Sajjan Kumar Agarwala stated in the affidavit that the date of birth was June 27, 1947. Copy of the affidavit of KrishanlaI Agarwala is to be found at page 19 of the brief and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect: " (1) Whether, on the facts and in the circumstances of the case, the Tribunal committed an error of record with respect to the date of birth given in the affidavit of Krishanlal Agarwala to be June 27, 1946, when the actual date mentioned therein is June 27, 1947, which has vitiated its finding that Sajjan Kumar Agarwala was a minor? (2) Whether, on the facts and in the circumstances of the case, the age of a person should be determined from the entry in the school register or entry in the horoscope prepared at the time of the birth of the child ? " The Tribunal refused to refer these two questions and has pointed out in paragraph 3 of the statement of the case that the first two questions as framed by the assessee are not quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered under section 26A of the Indian Income-tax Act, 1922. This decision will be applicable under the Act as well. It is not disputed that Sajjan Kumar Agarwala was admitted as partner and he was to bear profits and losses and so he was a full-fledged partner. In such circumstances, it has to be held that the deed of partnership executed on September 10, 1966, was an invalid document as Sajjan Kumar Agarwala was a minor at that time. Mr. K. N. Jain has submitted that the question referred to the Tribunal includes the question of perversity of the finding of the Tribunal. It is difficult to accept this contention when questions Nos. (1) and (2) were specifically refused by the Tribunal for reference to this court on the round that those ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court that when the question referred to the High Court speaks of " on the facts and in the circumstances of the case ", it means on the facts and circumstances found by the Tribunal and not facts and circumstances that may be found by the High Court on a reappraisal of the evidence and that in the absence of a question whether the findings were vitiated for any reason being before the High Court, the High Court has no jurisdiction to go behind or question the statement of facts made by the Tribunal. In view of the aforesaid decisions, it cannot be doubted that this court cannot reappraise the evidence when the Tribunal has already found as fact that Sajjan Kumar Agarwala was born on September 27, 1951, and he was a minor w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
