1989 (12) TMI 107 - AT - Income Tax

Tribunal grants registration to reconstituted firm despite ITO objections

The Tribunal allowed the appeal, granting registration to the reconstituted firm. It concluded that the firm had complied with legal requirements for ... Partnership Deed Issues Involved:1. Certainty about the partners and their retirement.2. Validity of the partnership due to dual capacity of a partner.3. Discrepancies regarding the retirement of partners.4. Non-compliance with the notice requirement for retirement.5. Registration with the Registrar of Firms.6. Validity of reconstitution of the firm.Detailed Analysis:1. Certainty About the Partners and Their Retirement:The Income-tax Officer (ITO) raised concerns about the certainty of the partners, particularly regarding the inclusion of M/s. Annapurna Agro Chemicals Pvt. Ltd. and M/s. Annapurna Agro Products Pvt. Ltd. The ITO accepted that the mention of 'Annapurna Agro Chemicals Pvt. Ltd.' was a typographical error. However, the main issue was whether Sri Gangadhara Rao and Smt. Vasundhara Devi had actually retired from the firm. The ITO concluded that they did not retire, leading to uncertainty about the partners post-1-12-1982. The Commissioner of Income-tax (Appeals) (CIT(A)) concurred, emphasizing the disputes and conflicting statements, thereby making it difficult to ascertain the real partners.2. Validity of the Partnership Due to Dual Capacity of a Partner:The ITO objected to Sri K. Venkateswara Rao signing the partnership deed and the registration application in dual capacities-one as an individual and the other as Managing Director of Annapurna Agro Products Pvt. Ltd. The Tribunal found this objection invalid, stating that there were 17 other partners, and a company can enter into a partnership with other individuals, including one who is a managing partner in another capacity.3. Discrepancies Regarding the Retirement of Partners:The ITO cited multiple discrepancies, including statements from Smt. Vasundhara Devi and Sri Gangadhara Rao denying their retirement. The Tribunal analyzed the evidence, including letters and court statements, and concluded that Sri Gangadhara Rao had indeed retired, as he had given a letter of retirement on 30-11-1982. The Tribunal also found that Smt. Vasundhara Devi had expressed her desire to retire, which was orally consented to by other partners, despite her later denials.4. Non-Compliance with the Notice Requirement for Retirement:Clause 4 of the partnership deed required a one-month written notice for retirement. The Tribunal noted that while this written notice was not provided, retirement could still occur with the consent of all partners as per Section 32(1)(a) of the Partnership Act. The Tribunal found that both Sri Gangadhara Rao and Smt. Vasundhara Devi had retired with the consent of all partners.5. Registration with the Registrar of Firms:The ITO objected to the lack of intimation to the Registrar of Firms about the changes in the partnership. The Tribunal held that registration under the Partnership Act is optional and not mandatory. The absence of intimation to the Registrar did not invalidate the reconstitution of the firm.6. Validity of Reconstitution of the Firm:The Tribunal found that the reconstitution of the firm was valid. The deeds of partnership dated 6-12-1982 and 1-2-1983 were duly executed, specifying the names and shares of the partners. The Tribunal held that the reconstituted firm was genuine and entitled to registration, as the business continued till its dissolution upon conversion into a limited company.Conclusion:The Tribunal set aside the orders of the lower authorities and allowed the appeal, granting registration to the reconstituted firm. The Tribunal emphasized that the firm had complied with the legal requirements for registration, and the objections raised by the ITO were not sufficient to deny registration.