TMI Blog1972 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment or reassessment of the income of the firm. The provisions in the old Act and in the new Act in respect of this power are substantially the same - petition dismissed - - - - - Dated:- 27-9-1972 - Judge(s) : G. RAMANUJAM., V. RAMASWAMY. JUDGMENT The judgment of the court was delivered by RAMASWAMI J.-These are petitions for the issue of writs of certiorari to quash the orders of the respondent made under section 155 of the Income-tax Act, 1961, in respect of the assessment years 1955-56 to 1958-59, 1960-61 and 1961-62. The petitioner in all these cases was a partner in Messrs. T. M. Abdul Rahim Sahib and Company. The said firm was constituted under a deed of partnership dated April 1, 1954, with seven partners of who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 147 in respect of the assessment years 1955-56 to 1958-59, 1960-61 and 1961-62. The continuing partners agreed to the proposed additions and the reassessments for all the years were completed on that basis by orders dated February 27, 1968. On the basis of the reassessment of the firm, revision of the assessments of the individual partners was proposed by issuing notices under section 155 of the Income-tax Act, 1961, and, ultimately, the orders of assessment of the petitioner were amended under section 155 for the assessment years 1955-56 to 1957-58 by an order dated January 20, 1969, for the assessment year 1958-59, by an order dated December 31, 1968, and for the assessment years 1960-61 and 1961-62 by an order dated December 30, 1968 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that where, at the time of making an assessment under section 143 or 144, it is found that a change has occurred in the constitution of the firm, the assessment shall be made on the firm as constituted at the time of making the assessment, provided that the income of the previous year shall, for the purposes of inclusion in the total incomes of the partners be apportioned between the partners who, in such previous year, were entitled to receive the same. Under section 189(1), where any business or profession carried on by a firm has been discontinued or where a firm is dissolved, the Income-tax Officer shall make an assessment of the total income of the firm as if no such discontinuance or dissolution had taken place. Section 2(8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits of the partnership. Ashokbhai, the son, attained the age of majority on 24th January, 1939. The assessment of the firm for the assessment year 1938-39 was completed on the 4th July, 1938, before the minor attained the age of majority. The assessee's individual assessment for the assessment year 1938-39 was completed on 2nd February, 1939, and for the assessment year 1939-40 on 19th December, 1939, subsequent to the minor attaining the age of majority. The question for consideration in respect of the assessment year 1938-39 was whether the share income of Ashokbhai could be included in the assessment of his father under section 16(3). It was contended on behalf of the assessee that since the minor had attained the age of majority b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e partners who in such previous year were entitled to receive the same. We are, therefore, of opinion that the impugned orders were validly made under section 155 of the Act. It is next contended by the learned counsel that both under the terms of the deed of relinquishment dated October 4, 1960, and the deed of indemnity dated July 12, 1961, the petitioner was relieved of all liability for income-tax due or payable by the firm and that, therefore, these assessment orders could not be revised under section 155. In the deed of relinquishment there was a clause to the following effect : " The continuing partners hereby and in consideration of the covenants and stipulations made in the indenture jointly and severally covenant with the outg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed as against the fifth defendant, the income-tax department. Relying on these documents and the decrees, the learned counsel for the petitioner contended that his assessment cannot be revised under section 155. Section 155 is not subject to any agreement between the parties, nor is the apportionment of the total income of the firm among the partners as provided in the proviso to section 187(1) made subject to any agreement between the parties. We are unable to see how the terms of the deed of indemnity could be invoked at all as against the income-tax authority. The liability of the petitioner is a statutory liability and there is nothing in the statute itself which relieves the petitioner of his obligations. Even in the suits filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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