9911796707
TMI Blog1986 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law and on facts in allowing the registration of the firm under s. 185(1)(a) of the IT Act, 1961. 2. The ld. AAC erred in law and failed to appreciate to take note of the following factors which have the hearing on the determination on the genuineness of the partnership: (a) There was no evidence regarding the creation of oral trust on 20th April, 1975 and 16th June, 1976 namely Nidhi Kedia Trust and Sanjiv Kedia Trust respectively. (b) That the two trusts were created as per Trust Deeds executed after the date of execution of partnership deed viz. 12th June, 1965 and the date of coming into force of partnership firm viz 10th June, 1976. (c) That on examination of the Cheque No. 276941 dt. 20th April, 1976 purported to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly created a Trust hereby with the aforesaid objects under the name and style of Sanjiv Kedia trust and hereby declare a Trust...... These narrations clearly indicate that the Trust were created on 14th June, 1976. The stamp paper on which the Trust Deeds were written were purchased on 12th June, 1976. (h) That the Nidhi Kedia Trust was a discretionary trust created for the benefit of Km Vandana Kedia, Km. Raj Nandini Kedia, Km. Veena Kedia and Km. Nidhi Kedia all four being minor daughters of Sri Vijay Kumar Kedia Similarly Sanjiv Kedia Trust was also a discretionary Trust and was created for the benefit of Master Sanjiv Kedia, minor son of Sri Manni Lal Kedia. 3. The ld. ACC earned in law and on facts in not considering the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, 12th June, 1976 nor on the date the partnership deed came into force, namely, 10th June, 1976. Further, it was argued that provisions of Expln. to s. 185 have also not been considered by the AAC in proper perspective nor the issue examined in the manner the same should have been done. The ACC has only written that Form No. 12-A had been filed but he did not write as to whether the said form had been filed correctly showing correct particulars. It was also pointed out that there were cutting and over writings in the trust deed which showed that the trust deeds were not written nor given effect to on the dates these have been shown but were written after wards. 3. The representative of the assessee argued that the order the ACC was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when they were not in existence on the date the partnership deed was written. The ACC has also not cared to elaborate and pass a speaking order vis-a-vis the provisions of Expln. to s. 1985 (1) which was in operation in this year. The provisions of Expln. to s. 185(1) read as under: "Explanation—For the purposes to this section and s. 186, a firm shall not be regrded as a genuine firm if any partner of the firm was in relation to the whole or any part of his share in the income or property of the firm, at any time during the previous year a benamidar. (a) of any other partner to whom the first mentioned partner does not stand in the relationship of a spouse or minor child or (b) of any person, not being a partner of the firm, and any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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