1981 (8) TMI 5 - HC - Income Tax

Court remits references to Tribunal without answering questions, directs reevaluation of Sections 187(1) and 187(2)

The court remitted the references to the Tribunal without answering the questions posed, directing a reconsideration of the applicability of Sections ... Firm Issues Involved:1. Determination of whether the change in partnership constituted a dissolution or a mere change in the constitution of the firm.2. Applicability of Section 187(2) of the Income-tax Act, 1961.3. Consequences of the determination on the assessment and registration of the firm for the assessment year 1965-66.Issue-wise Detailed Analysis:1. Determination of whether the change in partnership constituted a dissolution or a mere change in the constitution of the firm:Changes in partnership can occur in various forms, such as changes in personnel or profit-sharing ratios, without necessarily affecting the business itself. However, a dissolution of the firm implies an end to the partnership, which may or may not be followed by the winding up of the business. The case law, such as Tyresoles (India) v. CIT, Kaithari Lungi Stores v. CIT, Mavukkarai (N.) Estate Tea Factory v. Addl. CIT, and Addl. CIT v. Thyagasundara Mudaliar, illustrates the distinction between a change in the constitution of a firm and a dissolution. The court emphasized that a firm can change its constitution only if there is no dissolution. In the present case, the Tribunal had to decide whether there was a dissolution of the firm or merely a change in its constitution. The Tribunal observed that there was no clear deed of dissolution and decided the issue based on cumulative evidence, including the conduct of the partners and the state of the accounts.2. Applicability of Section 187(2) of the Income-tax Act, 1961:Section 187(1) of the Income-tax Act, 1961, states that where there is a change in the constitution of a firm, the assessment must be made on the firm as constituted at the date of the assessment. Section 187(2) defines a change in the constitution of the firm as occurring when a partner leaves, a new partner joins, or there is a reshuffling of the profit-sharing ratio. Section 188 deals with the succession of a business from one firm to another. The question was whether the firm changed its constitution or whether the business changed hands. The Tribunal concluded that there was a dissolution of the partnership of four partners, followed by the formation of a new firm of three partners, thus implying that Section 187(2) did not apply.3. Consequences of the determination on the assessment and registration of the firm for the assessment year 1965-66:The Tribunal's decision that there was a dissolution of the firm followed by the formation of a new firm led to the conclusion that Section 188 applied, indicating a succession of business. This determination impacted the assessment and registration of the firm for the assessment year 1965-66. The Tribunal's finding that the firm had ended its career on December 14, 1964, and a new firm was constituted on December 15, 1964, meant that the procedure for continuance of the registration of the firm already granted was proper. However, the Tribunal's decision was challenged on the grounds that it did not fully consider the documentary evidence, such as the notice of retirement and the subsequent partnership deed. The court directed the Tribunal to re-examine all the facts and evidence to determine the applicability of Sections 187(1) and 187(2) of the Income-tax Act, 1961.Conclusion:The court remitted the references to the Tribunal without answering the two questions posed, directing the Tribunal to reconsider the applicability of Sections 187(1) and 187(2) by examining all the facts and documentary evidence. The references were returned to the Tribunal with these directions, and no order as to costs was made.