TaxTMI 
TaxTMI 
TaxTMI 
1964 (12) TMI 69
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....under Section 26-A or the Income Tax Act." 2. One Udayanath Mohapatra held a license for excise shop in ganja and opium in his own name, for the previous year ending 31-3-62 for which the assessment year would be 1952-53. Finding difficulty in financing the said excise shop individually, he entered into partnership with five other persons and a deed of partnership was executed on 30-3-1950. In that deed the interest of each partner in the profits and losses was specified. The partnership firm was described as Mohapatra Bhandar and that firm applied for registration under Section 26-A of the Income Tax Act for the year in question. The Income Tax authorities refused registration of the firm on the ground that the transfer of excise bu....
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....ra and the other partners for carrying on the business in respect of those conditions without obtaining the previous permission of the Collector would be unlawful because carrying on such business without license is an offence under the Bihar and Orissa Excise Act and the Opium Act. 4. The learned Tribunal relied on a Madras decision reported in D. Mohideen Sahib & Co. v. Commr. of Income Tax, Madras [1950]18ITR200(Mad) which again was based on an earlier Full Bench decision of the same High Court, reported in Velu Padayachi v. Sivasooriam Pillai AIR 1950 Mad 444 where it was held that such an agreement is void ab initio. This view has been followed by the Kerala High Court in Commr. of Income Tax, Mysore v. Union Tobaco Co. Ernakulam [196....
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....e business, there was no transfer or sub-lease of the license inasmuch as a contract did not entitle the transferee to sell any of the goods covered by the license AIR 1929 All 210 also is a case of this type. In Karsan Sadashiv Patil v. Gatlu Shiwaji Patil ILR 37 Bom 320 also it was held on a construction of the Bombay Abkari Act that if a licensee takes in partners for the purpose of sharing profits only there would be no transfer or sub-lease of the license. But in that very case it was pointed out that in Abkari Rules o 1895 there was prohibition of transfer or sub-lease (in whole or in part) of the right of the licensee to vend excisable goods and that in 1902 all references to the question of sub-letting a part of the right to vend or....
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....finance the excise business individually he made over the business to the firm in lieu of finance to meet the requirement of the Excise business. It was agreed that the partners would share the profits or loss in the excise business also according to the share of each partner in the firm. The firm financed the business and took over its management At the end of the year the net result of the several excise shops were incorporated in its profit and loss account." This finding clearly shows that the firm did not merely take over the financial part of the business but the entire business including its management. The business here consists merely in storing and selling excisable goods like opium and ganja and when the Income Tax authori....
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....at the person who actually sells and who actually purchases and who is actually in possession of the mica has the dealer's licence required under Section 4 (1) (d) of the Act." Here as already pointed out there is no finding that Udayanath Mohapatra was the managing partner of the Firm for excise business. The partnership deed itself shows that there was no managing partner for the firm and the finding of fact by the Tribunal is that the Firm carried on the business which would necessarily mean the securing, possessing and selling of excisable articles in question. 10. Mr. Misra then contended that there is no clear finding on this point by the lower authority and a further statement of the case may be called for from the Tribun....