9911796707
TMI Blog1978 (11) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor at present residing at Kanchrapara within the district of 24 Pgs. Of the first part. And 2. Rambalak Singh Sachidanand Singh, a Hindu undivided family, consisting of Ram Balak Singh and Sachidanand Singh where the karta is Rambalak Singh by caste Hindu by profession a trader and a contractor at present residing at Kanchrapara within the district of 24 Pgs. Of the second part. And 3. Chandradip Singh, soil of Sri Sital Singh, by caste Hindu by profession a trader and a contractor at present residing at Kanchrapara within the dist. of 24 Pgs. Of the third part. (All the above persons hereinto, referred to as 'Party' which expression, unless repugnant to or inconsistent with the context, shall mean and includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on relying on the description of the parties in the preamble of the deed as set out hereinbefore. Being aggrieved, the assessee preferred an appeal. The AAC upheld the order of the ITO relying on the preamble and the clause dealing with the division of profits and loss which also treated the HUF as a partner and specified its share. He also found that, in the capital account of the assessee, net profits had been credited to the HUF. The assessee preferred a further appeal to the Tribunal. It was, inter alia, contended before the Tribunal on behalf of the assessee, that it was the karta, Rambalak Singh, who has entered into the partnership and not the HUF and that the description of the parties in the preamble, if properly read, indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revenue, submitted that the preamble and cl. 9 of the deed which provided for division of profit and loss, clearly indicated that the intention of the parties was to admit the HUF as a partner and not the karta thereof as an individual. He also submitted that it was not for the court to rewrite the contract for the parties and if, on the face of it, the deed contravened the provisions of any law, it should be held to be invalid. In support of his contentions, Mr. Pal cited a decision of the Supreme Court in CIT v. Dwarkadas Khetan Co. [1961] 41 ITR 528. The facts in that case were that under a deed, a minor had been admitted as a full partner in a partnership. The minor had signed the deed, which provided that as a full partner the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of all adult members, females, minors and even unborn persons and strangers to the family. " The Supreme Court held that on a correct interpretation of the document the party had joined the partnership as an individual. The mere description that he was the manager of a joint Hindu family would not make the family a partner of the firm. Mr. Pranab Pal, learned counsel for the assessee, contended on the other hand that it was the signature which was the most important part of the deed. In the instant case, the signatures clearly showed that all the persons had signed as individuals and no one had signed for the HUF. He submitted that the deed had to be construed reasonably and it was to be assumed that the parties intended to make a va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of law, the court will take that course'. " In our view, the law is well settled. The principles laid down by the Supreme Court in the case of Dwarkadas Khetan Co. [1961] 41 ITR 528 has no application to the facts in the present reference. The admitted position before the Supreme Court was that a minor was sought to be made a partner in contravention of s. 30 of the Indian Partnership Act. There is no admission in this case that it was the intention of the parties to make the HUF a partner in the firm. The decision of the Supreme Court in Ram Laxman Sugar Mills [1967] 66 ITR 613, though cited by the revenue, supports the case of the assessee fully. It is to be appreciated that learned counsel for the revenue, in his fairness, cite ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
