TMI Blog1953 (10) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... of eight individual members of two disrupted families that the question of law could arise. If, as we hold, the assessee is not entitled to go behind the facts so found by the Appellate Tribunal in the statement of the case and as is implicit in the question itself, then there can be no doubt that there had been a change in the persons carrying on the business within the meaning of Section 8 of the Excess Profits Tax Act and it has not been argued otherwise. In our opinion, therefore, the answer given by the High Court to the referred question was correct. Appeal dismissed. - - - - - Dated:- 20-10-1953 - Judge(s) : GHULAM HASAN., N. H. BHAGWATI., PATANJALI SASTRI., S. R. DAS., VIVIAN BOSE JUDGMENT The Judgment of the Court was delivered by DAS, J.---This is an appeal from the judgment and order pronounced on the 20th June, 1951, by a Bench of the Calcutta High Court on a reference made by the Income-tax Appellate Tribunal under Section 66(1) of the Income-tax Act read with Section 21 of the Excess Profits Tax Act whereby the High Court answered in the affirmative the following question :--- " Whether on the facts and circumstances of this case there is a change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofits Tax Officer. The Appellate Assistant Commissioner confirmed the assessments and dismissed the appeals. Further appeals were taken to the Income-tax Appellate Tribunal. By an order made on the 25th July, 1949, the Appellate Tribunal dismissed all the three appeals. Thereupon three applications were made before the Appellate Tribunal under Section 66(1) of the Indian Income-tax Act read with Section 21 of the Excess Profits Tax Act. The Appellate Tribunal thereupon drew up a statement of case and submitted for the opinion of the High Court the question referred to above. The High Court, in agreement with the Appellate Tribunal, answered the question in the affirmative. Hence the present appeal under a certificate granted by the High Court under Section 66-A(2) of the Indian Income-tax Act. According to learned counsel who appears in support of this appeal Kshetra Mohan Sadhukhan and Sannyasi Charan Sadhukhan who were two brothers governed by the Dayabhaga School of Hindu law separated from each other many years ago. The two separated brothers, as kartas of their respective families, started a business in partnership under the name and style of Kshetra Mohan Sadhukhan and Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e eight individual members formed themselves into a partnership and carried on the business. Before the Appellate Tribunal also the same case was made, namely, that up to 13th April, 1943, the business was a partnership concern of two Dayabhaga Hindu undivided families, namely, the family of Kshetra Mohan Sadhukhan consisting of four adult male members and the family of Sannyasi Charan Sadhukhan also consisting of four adult male members and that from 14th April, 1943, the eight members of the two families constituted themselves into a partnership and carried on the business as such, although the contention of the assessee at one stage was that though the original partnership was entered into by the two kartas of the two families, in effect the partnership was between the adult members of the two families even at the inception. However, in its application under Section 66(1) an attempt was made for the first time to suggest yet another case, namely that prior to 13th April, 1943, the business was carried on in partnership by two associations of persons and not by two Hindu undivided families, implying that before that date the business was carried on by the eight individual members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction provides that the application shall be made by such person or persons and shall be in such form and be verified in such manner as may be prescribed. Rule 2 of the Indian Income-tax Rules requires that such application shall be signed by all the partners personally. Rule 3 enjoins that the application shall be made in the form annexed to that rule. It appears that on the 19th October, 1943, an application was made on behalf of Kshetra Mohan Sadhukhan and sons and Bijan Kumar Sadhukhan and brothers for the renewal of the registration of the firm under Section 26-A of the Indian Income-tax Act for the assessment for the income-tax year 1942-43. It was alleged in that application that the constitution of the firm and the individual shares of the partners as specified in the instrument of partnership remained unaltered. In the schedule to the application were set out the required particulars. The last column showed that in the balance of profits or loss the share of Kshetra Mohan Sadhukhan and sons was Rs. 4,370 and that of Bijan Kumar Sadhukhan and brothers was also Rs 4,370. The instrument of partnership dated the 19th September, 1943, referred to in the application appears to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the separated male members of the two families. We also agree with the High Court that if the case of the assessee was that even before 14th April, 1943, there was a partnership of eight persons and if that case was accepted by the Appellate Tribunal then no question of law could have arisen on those facts. It is only because the fact found was that prior to 13th April, 1943, the business was carried on by a partnership of two Hindu undivided families which prima facie means a partnership between two kartas representing two Hindu undivided families and that from 14th April, 1943, it became a business of eight individual members of two disrupted families that the question of law could arise. If, as we hold, the assessee is not entitled to go behind the facts so found by the Appellate Tribunal in the statement of the case and as is implicit in the question itself, then there can be no doubt that there had been a change in the persons carrying on the business within the meaning of Section 8 of the Excess Profits Tax Act and it has not been argued otherwise. In our opinion, therefore, the answer given by the High Court to the referred question was correct. In this view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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