9911796707
TMI Blog1979 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... cts giving rise to this reference are that the assessee-firm known as M/s. Mangat Ram Hazari Mal Kuthiala, Pathankot, carried on the business of exploitation of forests and sale of timber. It closed its accounts on the 30th June of each year. Its constitution was as follows : Name of the partner Share (i) Sh. Mangat Ram Kuthiala 9/16 (ii) Sh. Hazari Mal Kuthiala 7/16 On 30th May, 1958, Shri Mangat Ram Kuthiala, passed away and so the firm was dissolved. By an agreement, dated 7th June, 1958, Shri Hazari Mal Kuthiala, in consideration of an agreed amount, transferred his rights and interest in the firm and the business was taken over by Shri Radhakishan and Shri Kewaal Kishan, sons of Shri Mangat Ram Kuthiala, with effect from 30th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... death of Shri Mangat Ram, yet the business was not discontinued, and therefore, the provisions of s. 189 of the Act are not attracted. In the alternative, the Tribunal held as follows: " Now, in the present case, there is no material on record to prove that the assessee-firm (or Shri Radhakishan as the legal heir of Shri Mangat Ram Kuthalia) was prompted by any deliberate design to delay the filing of the return. There is also no evidence on record to hold that the conduct of Shri Radhakishan was, in any way, contumacious or dishonest. In our opinion, therefore, though there was delay in filing the return, the default on the part of Shri Radhakishan (who had, in fact, no concern with the assessee-firm) was nothing more than a technical or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bare reading of the provisions would show that the said provisions are attracted where any business or profession carried on by a firm has been discontinued or where a firm is dissolved. According to the plain language of the section, it is not necessary that the business or profession of the dissolved firm should stand discontinued and only then the provisions of this section will be attracted. Shri Bhagirath Dass, the learned counsel for the assessee, relies on a decision of the Supreme Court in Shivram Poddar v. ITO [1964] 51 ITR 823, to, contend that with a view to attract this provision, the dissolution of the firm and discontinuance of the business of the firm are two necessary ingredients. We are unable to agree with this contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the firm is dissolved. The provisions are attracted in either case. To read the provisions otherwise, would be violating the very plain language of the section, which we are unable to do. Therefore, the decision of their Lordships of the Supreme Court in Shivram Poddar's case [1964] 51 ITR 823 is of no help to the assessee. We are, therefore, of the opinion that the provisions of s. 189 of the I.T. Act are attracted in the present case. As regards the alternative findings given by the Tribunal, which have been reproduced in the earlier part of the judgment, the said findings also cannot be sustained. The provisions of s. 271 of the Act, which govern the imposition of penalty provide that if the ITO or the AAC in the course of any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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