9911796707
TMI Blog1989 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... irm. Thereafter the remaining partners alongwith the three other persons had constituted a fresh partnership firm the same day. Accordingly, a fresh deed of partnership was executed on 16th April, 1981 evidencing that the new partnership firm came into existence on 1st April, 1981. Thus, the assessee had filed two returns of income, the first for the period Diwali, 1980 to 31st March, 1981 and the second from 1st April, 1981 to 22nd Oct., 1981 but upto 31st March, 1982 for transport business. According to the assessee, the former firm stood dissolved on 1st April, 1981 and, therefore, two separate assessments should be made for the two periods. This claim of the assessee was not accepted by the ITO. On examination of the fresh deed of partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made, after the same had been signed by the partners, and this amounts to interpolation. He has noted that the partnership had been typed in double-spacing except for the sentence at the end, which confirms the corrections made in the deed. He also agreed with the findings of the ITO that the so-called notice of dissolution issued by Shri H.K. Agarwal is also an after-thought and prepared with a back-date. He, therefore, confirmed the findings of the ITO that there was only a change in the constitution of the firm and the firm did not dissolve. Aggrieved by that order, the assessee is in further appeal before the Tribunal. 4. The learned counsel for the assessee has invited our attention towards the copy of the notice dt. 26th Jan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fresh deed of partnership itself contains recitals to that effect. He has also invited our attention to the written submissions filed before the ITO wherein, also, the assessee had claimed that the firm stood dissolved and the accounts of all the assets and liabilities were settled. He has further invited our attention to the copy of the statement, submitted by the partners of the new firm to the Registrar of Firms for seeking registration of the firm under s. 58(1) of the Indian Partnership Act. A copy of that statement appears at page 22 of the assessee's compilation. It has been pointed out that the said firm was submitted on Form No. 1. It has been pointed out that the statement in Form No. 1 is required to be sent or delivered to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read as a whole and if there is any conflict between one part of a document and another, then effect has to be given to that part of the document, which finds support from the other facts and circumstances of the case. In this connection, reference has been made to Shri Ram Mills vs. CIT (1974) 95 ITR 279 (Pat). 7. As against the above submissions advanced on behalf of the assessee, the learned Departmental Representative has strongly supported the orders of the authorities below. According to him, the firm did not dissolve and all evidence to substantiate such contention, has been prepared subsequently. He has also submitted that even the preamble of the fresh deed of partnership has been altered after the same had been signed by the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at will. Therefore, it could be dissolved at any time by any of the partners. In this case, the assessee has filed a notice, which indicates that one of the partners i.e. Shri H.K. Agarwal had expressed his desire to dissolve the firm w.e.f. 1st April, 1981. The fresh deed of partnership also recites that the old firm stood dissolved. The mere fact that initially, the narration was typed to the effect that the firm is being re-constituted can be of little assistance for the same had been scored out and all enactments of the deed claimed that the same was scored out before they had put their signature on the deed. That apart, the fact that new firm had applied for registration in Form No. 1 to the Registrar of Firms is also suggestive of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of a different firm, provided there were common partners. It also held that the concept of partnership is one of agreement between the partners. If the partners agreed not that one partner should go out and another should come in, but that on a particular event the firm should be treated as dissolved, they are entitled to say so and what the partners have disrupted, it is not for the Department to unite unless there is specific authorisation in the Act. These reasonings of the Delhi High Court met with approval by the Hon'ble Supreme Court in Wajid Ali Abid Ali vs. CIT (1988) 67 CTR (SC) 43 : (1988) 169 ITR 761 (SC). 9. Applying the principles laid down in the above mentioned decisions, we find it difficult to uphold the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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