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TMI Blog1992 (3) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of Vinayaka Traders, another partnership firm. The indication was only in Form NO. 12A qua DKB & Co. In which the assessee is a partner entitled to 16 per cent share. The ITO in the personal assessment of the assessee took the share income from DKB & Co. At 16 per cent. At the same time, in the assessment of Vinayaka Traders, 8 per cent share of income from DKB & Co. through the assessee was included and from such included income there was allocation to the assessee at 38 per cent in respect of his income in Vinayaka Traders as in Vinayaka Traders, the assessee had 38 per cent share. The assessee's grievance before us is that he was only having 8 per cent (share in the profit of DKB & Co., in his own right the other 8 per cent share i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aan, (2) N. Vaamadevan, (3) S. Sukumaran, (4) G. Divakaran, (5) N. Dharmarajan (6) A. Dharmarajan (7) K. Gangadharan who was not a partner of the said firm Date: 23rd April, 1986. Signature Address 1. K Damodaran 7. G. Anandarajan ............. ............. 2. N. Krishnan 8. N. Subhakaran ............. ............. 3. R Bharathan 9. G. Somarajan ............. ............. 4. R Sadanandan 10. J. Sasikumar .............. .............. 5. T K Chandramohan 11. K. Bhaskaran .............. .............. 6. N Bharatharajan 12. S. Sukumaran .............. .............. . 13. G Gopi . .........." That DKB & Co. has filed this form with its assessing authority is evident from the acknowledgement found in the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be treated as genuine. It is seen from the records that DKB & Co. In which the assessee was a partner in his own right as also benamidar of Vinayaka Traders, had made such fact known to its assessing authority in the prescribed manner. Perhaps that is the reason why DKB & Co. Was granted registration. The authorities below took the view that because there was no mention of such declaration in the assessment order of M/s DKB & Co. and also because the apportionment of profit to the partners of M/s DKB & Co. In its assessment order did not spell out the dual capacity of Sri Subhakaran, it was not open to the assessee to say that he received 8 per cent share only from DKB & Co. In his own right and the other 8 per cent belonged to Vinayaka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee from DKB & Co. Vinayaka Traders is a partnership firm formed for the purpose of carrying on Abkari business and foreign liquors. The partnership firm DKB & Co. Was also carrying on by in Abkari and foreign liquors. Thus, the business of the two firms is of the same nature. Sec. 16 of the Partnership Act is relevant in this context and is as follows: "16. Personal profits earned by partners.—Subject to contract between the partners—(a)if a partner derives any profit for himself from any transaction of the firm, or from the use of the property or business connection of the firm or the firm name, he shall account for that profit and pay it to the firm; (b) if a partner carries on any business of the same nature as and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h relationship cannot be recognised by the Tribunal. We have gone through the provisions of the Benami Transactions (Prohibition) Act, 1988 (hereinafter called as "the Act"). Sec. 3 of the Act prohibits entering into benami transactions except in certain cases. Sec. 4 is as follows: "4. Prohibition of the right to recover property held benami.— (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. By virtue of s. 7 of the Act, provisions of s. 281 A of the IT Act which contained similar provisions as in ss. 4(1) and 4(2) of the Benami Transactions (Prohibition) Act, 1988 stands repealed, but the Expln. 1 to s. 185 does not stand repealed. Nor has it been deleted in the IT Act, 1961. Nor the Benami Transactions (Prohibition) Act, 1988 overrides the provisions of IT Act or the provisions of s. 16 of the Partnership Act or the provisions of s. 88 of the Indian Trust Act. In this view of the matter, we hold that merely because a partner happens to be a benamidar of an outsider registration cannot be refused to the firm if Form No. 12A had been filed with the Department. This applies to a partnership firm that came into existence prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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