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TMI Blog2008 (3) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... lding that the business of Hotel Surat belonged to the partnership firm and not to the assessee as proprietor? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the dissolution deed dated 19.1.1990 was not a lawful, valid and bonafide dissolution deed and assessee concocted the evidence by allegedly executing the deed of dissolution with an ulterior motive to defraud the Revenue?" 2. The Assessment Year is 1991-92 and the relevant accounting period is financial year ended on 31.3.1991. One Dr. Rasiklal T. Acharya (since deceased) filed return of income on 31.8.1991 declaring total loss of Rs. 1,36,398. As against that, the assessment was finalised at a total income of Rs. 12,31,42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order and the order of Commissioner (Appeals) by recording as under: "We have considered the rival submissions and perused the facts on record. We find that both the assessee and his wife are Doctor by profession and are highly qualified persons. During the course of search operations they spontaneously submitted that they were partners in the business styled as M/s. Hotel Surat with 50% share each. The relevant portions from their statements reproduced supra show that they submitted without any pressure and/or coercion. If the partnership had been dissolved by dissolution deed dt. 19.1.90 they would have brought this vital information to the notice of the authorised office who recorded their statements during the course of searc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) got anything on the dissolution of the firm Hotel Surat. It is not doubt witnessed by two witnesses but their addresses are not given. One witness is K.C. Rajput and the other witness has imply affixed illegible signature. Obviously the deed was rushed through in a hurry with an ulterior motive and cannot be accepted as a valid piece of evidence, more so in the face of categorical and spontaneous statements of the assessee and his wife recorded during the course of search operations. Further, as stated above, no effect was given to the terms of the alleged deed of dissolution as no entries were passed in the books of accounts; and no intimation of the dissolution was sent to the Registrar of firms and the bank. Reliance placed by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heirs of the deceased assessee was allowed in the following terms: "This application seeks permission to bring on record legal heirs of deceased Dr. Rasiklal T. Acharya, who is the applicant in Income Tax Reference No. 21 of 1997. Heard the learned advocates for the respective parties. The application is allowed. Cause title of ITR No. 21 of 1997 to be amended on or before 4.3.2008. Main matter to be listed for hearing on 5.3.2008. The application stands allowed accordingly." 8. Mr SN Soparkar Learned senior Advocate appearing on behalf of the applicant-assessee submitted that before holding the dissolution deed to be a non-genuine document, no attempt was made by any authority to examine either the signatories to the document or the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence on record. The facts are not in dispute. Search and seizure proceedings took place at the residential premises of the deceased assessee as well as the premises of Hotel Surat. Statements of both the deceased assessee and his wife were recorded during the course of proceedings under sec. 132 of the Act. The relevant extract from the statement of deceased assessee as reproduced by the Tribunal, reads as under: Q.18: How much you have invested in the Hotel Business? Ans. In my Hotel business I have invested about Rs. 30 lacs. Q.19: In the partnership business of Hotel Surat who are the other partners? And what is their share ? Ans. In Hotel Surat I and my wife Shardaben are partners and our share is 50-50." 11. Similarly, relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, there is no retraction from the statement by either one of them. 13. On behalf of the assessee emphatic reliance was placed on two certificates, one dated 1.10.1988 issued by the Surat Municipal Corporation and another dated 13.9.1988 (wrongly mentioned as 17.10.1988) issued by the Police Commissioner, Surat to contend that as both the certificates mention only the name of deceased assessee the said documents would support the case of the assessee that the business of the hotel was a proprietary business. This contention also does not merit acceptance because vide letter dated 29.3.1992 the deceased assessee himself accepted before the Assessing Officer that a partnership had in fact come into existence on 15.7.1988, wherein, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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