TaxTMI 
TaxTMI 
2008 (7) TMI 614
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....isions under section 184/185 would not alter its status as claimed (PFAOP) in terms of the provisions of section 292B of the Income-tax Act, 1961." 2. This appeal filed by the revenue was disposed of by the Tribunal vide order dated 31-3-2003. Thereafter, the revenue moved an application under section 254(2) of the Act stating that the ground No. 3 raised in the appeal was not considered by the Tribunal while deciding the appeal. The misc. application numbered as M.A. No. 297 (Delhi) 2007 was disposed of by the Tribunal vide order dated 25-2-2008 by holding that the ground No. 3 was not adjudicated upon. The Tribunal, therefore, directed the registry to issue notice to the parties for fixing the case for hearing in due course. The Tribunal's earlier order was thus recalled for a limited purpose to adjudicate the ground No. 3. 3. Ground No. 3 is against CIT(A)'s order in taking the status of the assessee as partnership firm assessed as AOP, and not partnership firm as such taken by the Assessing Officer. 4. The assessee filed return of income for the assessment year under consideration on 12-11-1999 as a new case declaring total income at Rs. 1,07,210. The case of the asses....
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..... Further the assessee has affixed Rubber stamp in which the word partner is affixed in the name of Kishan Lal & Co. However, the assessee wrote the word member by hand and putting a slash before partner. In the partnership deed filed by the assessee signatures of all partners are present and share of profits of partners had also been determined. Apart from these the assessee has himself filed copy of purchase deed/sale deed regarding purchase of property at Abu Lane, Meerut purchase from M/s. Mohan Meakins Ltd. In which the status of the assessee-firm has been shown as Partnership Firm. Similarly, at the time of sale also to M/s. Kritika Builders, Meerut the status of the assessee has been shown as Partnership Firm in Agreement to Sale. Similarly, in all purchase deed/sale deed of other properties purchased/sold during the previous year and this year, the status of the assessee is clearly of Partnership Firm not as AOP. Similarly, the status of the assessee has been shown by the assessee itself as Partnership Firm in application under section 230A(4) which is Form No. 34A before the then Addl. CIT, Spl. Range, GZB dated 2-3-2000. Independent enquiries were also made during t....
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....nt also argued that the Assessing Officer has no liberty and right to assessee in the status of Partnership firm (PFAS) unless the conditions laid down under section 184(1) to 184(2) are fulfilled. In the case of the appellant, no such conditions have been compelled with and hence section 185 is applicable in the case of the appellant which states that "where a firm does not comply with the provisions of section 184 for any assessment year, the firm shall be assessed for that assessment year in the same manner as an Association of persons, and all the provisions of this Act shall apply accordingly." After considering all these facts and also the legal position on this issue, I hold that the Assessing Officer was not justified in taking the status of the appellant assessee as Partnership Firm (PFAS). The Assessing Officer is, therefore, directed to take the status of the appellant as PFAOP, as claimed." 9. Hence, the department is in appeal. 10. The ld. DR supported the order of Assessing Officer and contended that the Assessing Officer was very much justified in taking the status of the assessee as Partnership Firm As Such (PFAS) and not as AOP (PFAOP) as would be evidenced b....
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.... the return of income. The assessee had not filed any instrument of partnership along with the return which was necessary for claiming the status as PFAS. At this stage, it is useful to refer the provisions of sections 184(1), 184(2), 184(3) and 185, which at the relevant point of time stood as under :- "184. (1) A firm shall be assessed as a firm for the purposes of this Act, if- (i )the partnership is evidenced by an instrument; and (ii )the individual shares of the partners are specified in that instrument. (2) A certified copy of the instrument of partnership referred to in sub-section (1) shall accompany the return of income of the firm of the previous year relevant to the assessment year commencing on or after the 1st day of April, 1993 in respect of which assessment as a firm is first sought. Explanation.-For the purposes of this sub-section the copy of the instrument of partnership shall be certified in writing by all the partners (not being minors) or, where the return is made after the dissolution of the firm, by all persons (not being minors) who were partners in the firm immediately before its dissolution and by the legal representative of any such partne....
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....opy of instrument of partnership shall be certified in writing by all the partners (not the minors). Once a firm is assessed as such for any assessment year, it shall be assessed in the same capacity for every subsequent year, if there is no change in the constitution of firm or the shares of the partners as evidenced by the instrument of partnership on the basis of which the assessment as a firm was first sought as so provided in sub-section (3) of section 184 of the Act. Section 185 of the Act as it was stood in the relevant assessment year 1999-2000 provides that where a firm does not comply the provisions of section 184 for any assessment year, the firm shall be assessed for that assessment year in the same manner as an Association of Persons, and all the provision of this Act shall apply accordingly. It is thus clear that in order to assess a firm as such for any assessment year, the provisions of section 184 are to be complied with, in failure of which a firm shall be assessed for that assessment year in the same manner as an Association of Persons. In the present case, it is an admitted position that a certified copy of the instrument of partnership was not accompanied with ....