9911796707
TMI Blog1976 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... e Dr. Sudhakar Rao, an eminent doctor of Coimbatore and his two sons, Jayakar Rao and Pradeep Rao, entered into a partnership by deed dated 1st April, 1961, and started running a nursing home under the name and style of "Sree Ramakrishna Nursing Home". Dr. Sudhakar Rao was the senior partner and his two sons, at the time when the partnership was entered into, were studying in the medical colleges, one at Udipi and the other at Pondicherry. The partnership deed constituted Dr. Sudhakar Rao as the senior partner as well as the managing partner. The deed stated that the object of the nursing home was mainly to do surgical work under the guidance of Dr. Sudhakar Rao who would also be the surgeon-in-chief of the nursing home. The deed also provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -65. The appeal preferred by the assessee to the Appellate Assistant Commissioner proved unsuccessful. However, further appeal preferred by the assessee with the Income-tax Appellate Tribunal proved successful. The Tribunal held that it was not as if Dr. Sudhakar Rao asked unqualified persons to perform any operation or to attend to patients or to treat them and only Dr. Sudhakar Rao could attend and did attend to patients for rendering professional services and other eminent doctors were also, at request, rendering professional services and even dressing and other allied works were carried on only under the immediate supervision of Dr. Sudhakar Rao. In view of this finding of the Tribunal, the Tribunal took the view that there was nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. As far as the first part is concerned, the partnership can be said to be illegal only if it is in contravention or violation of any provision of law in this behalf and the learned counsel for the department had to very fairly admit that he could not contend that the partnership was in violation or contravention of any provision or principle of law. Therefore, there is nothing in the partnership deed from which it could be said that the partnership was illegal. The result is, we are only left with the latter alternative, namely, whether the partnership could be said to be opposed to public policy. We asked the learned counsel for the department to state what exactly the public policy to which the provisions contained in the partnership ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to be remembered that this expression "professionally" does not stand alone and it is followed by the expression "or otherwise" and also the other expression is "in the maintenance of the nursing home and also for the benefit of the patients". Thus, clause 10 is a comprehensive one and not confined only to the rendering of assistance by the two sons to the father in the performance of surgical operations, but assisting the father in the maintenance of nursing home generally, the said nursing home being for the benefit of the patients who come to the nursing home. There is absolutely nothing unnatural or unethical in a qualified doctor taking assistance from a medical student to the extent to which such medical student is capable of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee any substance in the contention of the department that the partnership is opposed to public policy. With reference to the argument of the learned counsel for the department, we may also refer to one significant fact admittedly present in this case. On November 24, 1967, the assessee wrote to the Secretary of the State Medical Council, Madras, setting out the details as regards the assessee-firm and asking the opinion of the State Medical Council as to whether the medical code or ethics or the law regulating the medical profession (Allopathy) in India contained any provision which prohibited the formation of any partnership containing the provisions referred to. On 26th June, 1968, the Registrar of the Madras Medical Council wrote to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in writing registering the firm for the assessment year ; (b) if he is not so satisfied, he shall pass an order in writing refusing to register the firm." From this it can be inferred that what was meant to be within the jurisdiction of the Income-tax Officer was to enquire into and decide about the genuineness as well as the legality of the firm; but certainly not the question whether a firm is opposed to public policy or not. Though the law relating to public policy must change with the passage of time, since it cannot remain immutable, the duty of the court is to expound and not expand public policy and the doctrine should be involved only in clear cases in which the harm to the public is substantially incontestable and does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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