TMI Blog1979 (3) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted on 8th Oct., 1971. Books of accounts were closed to profit and loss account on 7th Oct., 1971 and profit till period was credited to the seven partners. The assessee filed a return of income indicating the income for the period 1st April, 1971 to 31st March, 1972 for the asst. yr. 1972-73. The return was stated to be for the year ending 31st March, 1972. Along with the return, the assessee furnished statements which showed the income for the period 1st April, 1971 to 7th Oct., 1971 and 8th Oct., 1971 to 31st March, 1972. Application in Form No. 11 and 11A together with original partnership deed executed on the 8th Oct., 1971 were filed on 20th Jan., 1972. The ITO found that there was no partnership deed for the period 1st April, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the moment the partner died there was an automatic dissolution of the partnership in this case on 7th Oct., 1971. There was nothing to continue the partnership after that date. The partnership which existed having been dissolved, on the ratio of the decision in Vinayaka Cinema's (1) case, the question of registration was to be considered only for the business of separate firm for the period 8th Oct., 1971 to 31st March, 1972. The assessee has filed an application in Form No. 11 and also application in Form No. 11-A as a matter of precaution. The firm was a genuine one which fact has been fully found as a matter of fact by the Tribunal in ITA No,. 978 (Hyd)/73-74 registration for the period 8th Oct., 1971 to 31st March, 1972 should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. 5. In Vinayaka Cinema's (1) case it is clearly laid down that where a firm is dissolved there could be no question of continuation of the firm as an entity. The following obtains in the head-note at page 469: "Where the firm ceases to exist as contemplated by s. 42 of the Partnership Act, the relationship of the partners inter se comes to an end and, therefore,. the firm can no longer be said to continue as before. If there has been a dissolution, the firm comes to an end and if the firm comes to an end, there cannot be a continuity of the firm and, therefore, after dissolution there cannot be said to be mere change in the constitution of the firm." Based on the above ratio it has been held that a new firm came into existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm No. 11 therefore by itself cannot support the Department's claim to refuse registration. The learned counsel for the Department has ingeniously argued that Form No. 11 and statements therein if r/w the return filed by the assessee leads to the conclusion that registration is applied for the period 1st April, 1971 to 31st March, 1972. He has also referred to the narrations in the preamble to the partnership deed dt. 8th Oct., 1971 in this connection. As regards the preamble, this does not help the Department. That the application in Form No. 11 has to be read in conjunction with whatever is stated in the return rightly or wrongly cannot also be accepted. The return on the contrary indicates the income for the two periods 1st April, 1971 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second period. Even the decision in 87 ITR 615 does not help the Department in so far as it only deals with a case where an assessee has claimed that it continued throughout the previous year. In the present case the claim of the assessee is just the reverse. The mere fact therefore that the assessee has indicated in his return the income for the period 1st April, 1971 to 31st March, 1972 and not for the period 8th Oct., 1971 to 31st March, 1972 alone would not be fatal to its claim for registration. The procedural formalities regards registration have also therefore been as complied with. We hold that the assessee is entitled to registration for the period 8th Oct., 1971 to 31st March, 1972. The appeal is partly allowed. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
