Khummaji Milapchand & Co. And Another v. Commissioner Of Income-Tax, A.P

Sriramulu, J.:— These two references are made by the Hyderabad Bench of the Income-tax Appellate Tribunal, at the instance of two different assessees under section 256(1) of the Income-tax Act, 1961. The question referred to us, for our opinion, in both the cases is:

“Whether, on the facts and in the circumstances of the case, the assessee-firm was entitled to registration for the assessment year 1963-64, under section 185 of the Income-tax Act, 1961?”

2. Since a common question of law arose on similar facts in both the cases, common arguments were addressed. Hence, it is convenient to dispose them of by a common judgment, although the assessees are different in both the cases. The material facts giving rise to these references are:

Consequent upon the death of Lasraj Khummaji, one of the four partners of M/s. Khummaji Milapchand & Co. (in R.C No. 65 of 1968) and M/s. Sokalchand Indermal & Co., (in R.C 82 of 68), on September 17, 1961, the assessee-firms were reconstituted by instruments of partnership dated April 17, 1962, by the admission of the three minor sons of Lasraj Khummaji, viz., Jeevaraj, Indermal and Chandramal, to the benefits of partnership. Some other changes in the constitution of the firms were also effected, but those changes have no bearing on the question referred to us. The amount standing to the credit of the deceased partner, Lasraj Khummaji, in the account books of the previous firm on the last Diwali, i.e, November 8, 1961, was treated as the capital of the three minor sons, who were admitted to the benefits of the partnership of the assessee-firms. Clause 7 of the instruments of partnership of the re-constituted firms specifying the shares of the partners read thus;

In R.C No. 65/68.

Clause 7:

“The accounts of the firm will be closed by the end of every Deepavali year and partner No. 3, Jeevaraj, Indermal and Chandramal (being minors) is entitled to share in the profits only and the other partners will share profits and losses in the proportions set out against the name of each partner after setting apart Rs. 0.06 profits for go out (sic) of Rs. 1.06 nP.

1. Sokalchand Khummaji 0.23 nP. share 2. Anraj Khummaji 0.23 nP. share 3. Jeevaraj; Indermal & Chandramal, being minors represented by guardian mother, Ballibai Kevaji 0.23 nP. (for profits only) 4. Lalchand Khubaji 0.17 nP. share 5. Devichand Khubaji 0.14 nP. share Re. 1.00

In R.C No. 82/68.

Clause 7:

The accounts of the business shall be closed at the end of every Deepavali year and the profits or losses (the minor partners are entitled only for profits), as the case may be, divided equally between the partners after setting apart anna one share out of one rupee towards charity.”

3. Both the firms applied to the Income-tax Officer, under section 185 of the Income-tax Act, 1961, for the grant of registration for the assessment year 1963-64. The Income-tax Officer granted registration to the assessee-firms.

4. On examining the records of the proceedings of the Income-tax Officer, the Commissioner of Income-tax was of the view that the grant of registration to the assessee-firms was not in accordance with law and was prejudicial to the interests of the revenue and, therefore, after issue of notice to the assessee-firms and after hearing them cancelled the orders of the Income-tax Officer granting registration to the assessee-firms and directed the Income-tax Officer to make assessments according to law. Aggrieved by the orders of the Commissioner of Income-tax cancelling registration, the assessee-firms filed appeals to the Income-tax Appellate Tribunal. The Appellate Tribunal sustained the orders of the Commissioner of Income-tax, but on only one ground that there is non-specification of the individual shares of the three minors (who were admitted to the benefits of the partnerships) in the profits of the business.

5. At the instance of the assessees, the Hyderabad Bench of the Income-tax Appellate Tribunal referred the above mentioned question for our opinion under section 256(1) of the Income-tax Act, 1961 (hereinafter called “the 1961 Act”).

6. The learned counsel appearing for the assessees contended that the strict view that specification of shares in the instruments of partnership meant clear setting out of fraction or proportion of the share in the instrument does not now hold the field. The Supreme Court has given an enlarged and a liberal meaning to the word “specified”. The word “specifying” was used in section 26A of the Indian Income-tax Act, 1922, and in rule 2 of the Indian Income-tax Rules, 1922, as meaning:

“Mentioning, describing or defining in detail; it did not mean expressly setting out any fractional or other shares.”

7. For determining whether or not the shares are specified, the instrument of partnership must be read as a whole and in the context of relevant circumstances of the case. The instruments so read in the context of the circumstances disclose that the individual shares of the minors, who were I admitted to the benefits of the partnership, are specified in those instruments. The Appellate Tribunal was, therefore, not justified in upholding the orders of the Commissioner of Income-tax.

8. Sri Rama Rao, the learned standing counsel for the income-tax department, contended that one of the essential conditions for the grant of registration was the specification of individual shares of the partners in the instrument of partnership. The shares of the minors in the instant cases have been shown collectively in the instruments of partnership. The individual shares of the minors in profits have not been specifically shown and, therefore, the Tribunal was right in upholding the orders of the Commissioner of Income-tax.

9. In R.C No. 65 of 1968 the learned counsel further contended that the finding of the Tribunal that the shares of the partners in losses have also been specified in the instrument of partnership is erroneous. The department can also rely upon that ground for supporting the order of the Tribunal.

10. The procedure for registration of firms was laid down in section 26A of the Indian Income-tax Act, 1922, and rules 2 to 6 of the Indian Income-tax Rules, 1922, and the same is now found in sections 184 and 185 of the Income-tax Act, 1961, and rules 22 to 25 of the Income-tax Rules, 1962.

11. The question of grant or refusal of registration to the assessee-firms for the assessment year 1963-64 has to be considered with reference to the procedure laid down by the 1961 Act.

12. In brief the procedure for registration of firms laid down by the 1961 Act under sections 184 and 185 and rules 22 to 25 of the Income-tax Rules, 1962, may be stated:

A partnership, which is evidenced by an instrument, wherein the shares of the individual partners are specified may, before the 2nd of the previous years, apply in the prescribed form to the Income-tax Officer, having jurisdiction to assess the firm, for the grant of registration. Such application must be signed by all the major partners or by a person duly authorised in that behalf in the case of absentee partner, or a person who can, in law, represent in case of a lunatic or an idiot partner. The application shall be accompanied by the original instrument evidencing the partnership together with a copy thereof. The Income-tax Officer may accept an application filed beyond the time fixed for such filing and can dispense with the production of the original instrument of partnership, if he is satisfied in the former case that the assessee was prevented by sufficient cause from filing it within time and in the latter case it was not convenient to produce the original. The application for registration may be made either during the existence of the partnership or after its dissolution.

13. If the Income-tax Officer is satisfied that the constitution of the firm so specified was in existence during the relevant previous year and was genuine, he shall grant registration under section 185 of the 1961 Act in writing. Registration shall not be refused merely for any defects in the application, unless those defects are brought to the notice of the assessee and the assessee fails to remove them within the time fixed therefor.

14. When once registration is granted it shall, under section 184(7), have the effect for every subsequent year, if the assessee-firm files a declaration in Form No. 12, along with the return, that there was no change in the constitution of the firm or the shares of the partners as evidenced by the instrument on the basis of which registration was granted. Rule 22 of the Income-tax Rules prescribes the form in which the application has to be made and the time within which such application has to be made. Under rule 23, changes effected in the constitution have to be intimated to the Income-tax Officer. The declaration for renewal has to be made in Form No. 12.

15. Although some changes have been effected by the 1961 Act in the procedure relating to the registration of firms, which existed under the 1922 Act, both under the 1922 Act and under the 1961 Act, it is an essential condition for obtaining registration that the terms and conditions of the partnership should be in writing and the shares of the individual partners specified in the instrument. The words “individual” and “specified” in the instrument, occurring in section 184(1)(ii), have to be carefully noted.

16. In both the instruments of partnership the three minor sons of the deceased, Lasraj Khummaji, who have been admitted to the benefits of the partnership, have been described as “partner” and their collective share in profits has been shown as Rs. 0.23 nP. in R.C No. 65 of 1968. In R.C No. 82 of 1968 the three minor sons of Lasraj Khummaji have been shown as a unit and they share equally with the two other partners. In other words, in both the instruments of partnership, the three minor sons of Lasraj Khummaji, who have been admitted to the benefits of the partnership, have been shown as one unit and their cumulative share in the profits has been shown. Individual shares have not been specified in the instruments. Thus, on a plain reading of clause 7, in both the instruments of partnership, we have no hesitation to say that the mandatory requirement of law, that the individual shares of the partners should be specified in the deed of partnership, has not been fulfilled. The assessee-firms, therefore, are not entitled to the grant of registration.

17. We will then proceed to examine the contentions raised by the learned advocates in the light of the cases cited by them in support of their arguments.

18. In Commissioner Of Income-Tax, Madras v. N.V. Abdulla Sahib [1942] 10 I.T.R 7 Mad. [F.B]., a firm was reconstituted consequent on the death of one of the partners and in the place of the deceased his widow was taken in as a partner and also three minor sons and three minor daughters of the deceased were admitted to the benefits of the partnership. In the instrument all the six minor children were shown as a “body”, jointly entitled to a four annas share. In the application for registration of the new firm the widow's share was specified as six annas, “four annas in fact being the share of the minor sons and daughters” and nothing was said about the admission of minors to the benefits of the partnership. On the basis of those facts, a Full Bench of the Madras High Court held “that the individual shares of the minors, who were admitted to the benefits of the partnership, could not be said to have been specified in the instrument of partnership” and in that view justified refusal of registration.

19. In Khimji Walji & Co. v. Commissioner of Income-tax, where the shares of the minors, who are admitted to the benefits of the partnership in the place of their deceased father, were shown collectively as “ten annas”, the Patna High Court justified the “refusal of registration on the ground that the shares of individual partners were not specified in the instrument of partnership”.

20. The same view has been expressed by the Calcutta High Court in Karnidan Rawatmull v. Commissioner Of Income-Tax, Calcutta. [1963] 48 I.T.R 922 Cal.. and also by the Gujarat High Court in Commissioner of Income-tax v. Shivlal Dayaram Panchal [1966] 62 I.T.R 298 Guj...

21. Thus we find that the Madras, Patna, Calcutta and Gujarat High Courts, in the aforesaid cases, have taken the view that in the instrument of partnership, showing the collective share of the minors admitted to the benefits of the partnership, does not amount to the specification of individual shares of the minors, and that on the basis of such an instrument of partnership, the firm would not be entitled to registration.

22. It is only the Punjab High Court that has taken a different view in Commissioner of Income-tax v. Kishore Chand Ramji Das [1962] 44 I.T.R 622 Punj... No doubt, the Punjab High Court in the aforesaid case has held that the mere fact that the shares of some minors in the firm were shown collectively and the share of each one of them was not separately stated in express words, was not a sufficient ground for refusing registration to the firm. That view was taken by the Punjab High Court on the facts and circumstances of the case before it. The facts in that case disclose that the minors had taken the shares allotted to them collectively, in equal shares. In the present case there is no evidence to show that the minors have taken the profits of the firm, allotted to them, according to the collective share specified in the instrument of partnership, in equal proportions. Even if it is so, we are unable to agree with the decision of the Punjab High Court. We would prefer the view expressed by the other High Courts. It may also be mentioned here that the decision of the Madras High Court in Commissioner Of Income-Tax, Madras v. N.V. Abdulla Sahib [1942] 10 I.T.R 7 Mad. [F.B]. is binding on us and, therefore, we have necessarily to follow the view expressed by the Madras High Court.

23. The learned counsel appearing for the assessee placed strong reliance on the decision of the Supreme Court in Kailasa Sarabhaiah v. Commissioner of Income-tax and argued that, on the death of Lasraj Khummaji, his three minor sons under the provisions of Hindu law became entitled to share the property left by their father in equal proportions. It has been specifically agreed in the instruments of partnership that the amounts standing to the credit of their deceased father in the books of the previous firms and on Deepavali year ending November 8, 1961, could be their capital contribution to the reconstituted firms. Since under the provisions of Hindu law they were entitled to the capital left by their father in equal proportions, it necessarily followed that they would share in equal proportions the profits allotted to them by the firms for their collective share. It is, therefore, clear, when the instruments of partnership are read as a whole and in the context of the relevant circumstances that the individual shares of the three minors, admitted to the benefits of the partnership, have been specified in the instruments of partnership. We are unable to accept this argument.

24. Similar argument was addressed and accepted by the Tribunal in Commissioner of Income-tax v. Shivlal Dayaram Panchal but the view expressed by the Tribunal was disapproved and reversed by the Gujarat High Court. The following observations of the learned judges will bear out what is stated above:

“The Tribunal took the view that, prior to his death, Balubhai held his share in the assessee firm as a karta of his Hindu undivided family and that when, on the death of Balubhai, Hemendra and Niranjan were admitted to the benefits of the partnership by reason of clause (6) of the old deed of partnership, they also held their share as representing the Hindu undivided family and since it was the Hindu undivided family constituting a single unit which was a partner in the assessee-firm through the two minors, it was not necessary to specify the individual shares of the two minors in the assessee-firm and, consequently, there was no defect in the new partnership deed which precluded grant of registration on the basis of that partnership deed.”

25. With reference to that view, the Gujarat High Court observed that:

“The specification of a collective share belonging to the two minors would not meet the requirements of the section. The Tribunal sought to get over this difficulty by holding that the minors represented the Hindu undivided family in the assessee-firm and that it was the Hindu undivided family which was a partner in the assessee-firm through the two minors and that it was, therefore, sufficient if the collective share of 1/5 was specified as the share of the minors, for that was really the share of the Hindu undivided family which was a single unit. But this view is patently wrong. It is based upon an erroneous assumption that a Hindu undivided family can be a partner in a firm. It is undoubtedly true that a manager or other member of a Hindu undivided family may be a partner in a firm and the share which he has in the firm may, as between him and the Hindu undivided family, belong to the Hindu undivided family, but, so far as the firm is concerned, it is he and he alone who would be a partner and the other members of the Hindu undivided family would have no rights or liabilities qua the other partners and equally the other partners would have no concern with the members of the Hindu undivided family as such and they would look only to the manager or member who is their partner for enforcing their rights or discharging their obligations under the partnership deed. The Tribunal was, therefore, in error in taking the view that the Hindu undivided family was a partner in the assessee firm through the two minors. The two minors were admitted to the benefits of the partnership and they were entitled to the rights and were subject to the liabilities arising as a result of their admission to the benefits of the partnership and the specification of their individual shares was necessary under the provisions of section 26A. The new partnership deed was clearly deficient in this respect and the assessee firm was, therefore, not entitled to registration on the basis of the new partnership deed.”

26. Although the learned counsel appearing for the assessee did not in so many words argue that the Hindu undivided family was a partner in the assessee-firms, still the effect of his arguments is that the Hindu undivided family is a partner in the assessee-firms and the shares allotted to the three minors is the share of the Hindu undivided family, and as such there is no defect in the instruments of partnership, which disentitled them from obtaining registration under section 184 of the 1961 Act.

27. It is no doubt true that the three minors were admitted to the benefits of the partnership, because they were the male heirs of the deceased, Lasraj Khummaj, and the 23 nP. share, which was given to them in R.C No. 65/68 and the ⅓rd share in R.C No. 82/68, were given to them collectively. The fact that they were the male heirs of the deceased was material only for the view that it entitled them to the benefits of the partnership. But that did not mean that the collective share which was allotted to the minors was taken by them in equal shares. How they would divide their share would be a matter of internal arrangement between them. There is nothing in the instruments of partnership which establishes that there was an internal arrangement between the minors to share in equal proportions the profits allotted to them for their collective share. From the mere fact that the minors were entitled in equal proportions to the capital of their father does not in our opinion give rise to an inference that they would also share the profits in equal proportions. We, therefore, reject this argument.

28. In Kylasa Sarabhaiah v. Commissioner of Income-tax the facts are as follows:

There were three major partners in firm A in which four minors were admitted to the benefits of partnership. Its profits were to be shared equally between the seven persons whereas the losses were to be shared by the three major partners equally. A larger firm, firm B, was constituted, with five partners, under a deed of partnership in which firm A was described as the first partner and its members were collectively shown as having a share of six annas, nine pies, in the profits of the larger firm. The fact that four minors were admitted to the benefits of partnership in firm A with equal shares in the profits but losses were to be shared only by its three major partners was, however, recited in the preamble to the deed of partnership of firm B. The deed of partnership of firm B was signed by all the major partners of firm A. The question was whether firm B was entitled to be registered under section 26A of the Indian Income-tax Act, 1922. Their Lordships of the Supreme Court held that the right to registration under section 26A being conditional upon the specification of the individual shares of the partners, a deed of partnership between a firm and an individual which specified the collective shares of the firm, without more, could not be registered.”

29. Their Lordships further held:

“That the word ‘specifying’ was used in section 26A and rule 2 of the Indian Income-tax Rules, 1922, as meaning ‘mentioning, describing or defining in detail’; it did not mean expressly setting out in fractional or other shares.”

30. After laying down the law in the above terms, their Lordships examined the facts of that case. Although the firm was shown as a partner, all the partners of that firm signed the deed and in substance they were all parties to the instrument of partnership. It is in this context their Lordships observed:

“That an agreement cannot be permitted to be overshadowed merely by the use of the collective description of some of the persons who agreed to be partners.”

31. On a careful reading of the recitals in the deed their Lordships also found that the major partners of the smaller firm, which entered into a partnership in the bigger firm, shared the profits in equal proportions, and the minors who were admitted to the benefits of the partnership were not liable for losses. In view of such a recital, their Lordships came to the conclusion that on a reading of the instrument as a whole, it could not be said that the shares of the individual partners were not specified in the instrument. Therefore, their Lordships allowed registration of the firm in that case.

32. However, in the instant case, we have read the partnership agreement carefully. Neither in the recitals there is anything to show that the minors would share in equal proportions the profits that have been collectively shown against their names, nor is there any term in the instruments of partnership, which leads to the conclusion that the minors would share equally the profits that have been collectively allotted to them in the instruments of partnership. It is, therefore, clear that the decision in Kylasa Sarabhaiah v. Commissioner of Income-tax strongly relied upon by the assessees' counsel would not help the assessees.

33. It is thus clear that almost all the courts, except the Punjab High Court, have uniformly held that the non-specification of the individual shares of the minors in the instruments of partnership is a sufficient ground for refusal of registration. We, therefore, agree with the view expressed by the Tribunal that the assessee-firms are not entitled for registration for the assessment year 1963-64.

34. We will next consider the argument of the learned standing counsel for the income-tax department that in R.C No. 65 of 1968 the shares of the partners in losses have not been specified in the instrument of partnership and the finding of the Tribunal that the shares of the individual partners in losses have also been specified in the instrument of partnership is erroneous. Not only the individual shares of partners, in profits but also in losses, should be specified in the instrument by a firm to obtain registration under section 184 of the Income-tax Act, 1961.

35. On a careful reading of clause 7 of the concerned instrument, we find that the four major partners have been given shares of 23 nP., 23nP., 17 nP., and 14 nP. It is also made clear in the instrument that the minors who have been admitted as a unit to the benefits of the partnership and given a share of 23 nP. were not to share the losses, if any, and that in case of loss, only the major partners will share the losses in the proportions set out in the instrument.

36. The shares of the partners at 23 nP., 23nP., 17 nP., and 14 nP., have been fixed on the basis of the entire profits or losses being taken as 100 nP. In case of loss the minors, who have been admitted only to the benefits of the partnership, will not be liable for such loss. It is only the other major partners that will share the loss. Clause 7 of the instrument is sought to be interpreted in two different ways. One interpretation is that if, in any year, the partnership suffers any loss, that loss will be borne by the major partners in the proportion of the shares specified in the deed, i.e, at 23: 23: 17 and 14, altogether 77 nP. If they share 77 nP. of loss, then it is evident that 23 nP. loss would be left undistributed and with regard to that loss no shares of the partners have been specified in the instrument of partnership. If the other interpretation, that they will share the entire loss of 100 nP. in the same proportion as their shares in the profits, is accepted, then the shares of the major partners in profits could work out to more than their shares which are specified in the instrument of partnership. If the entire loss of 100 nP. is to be shared by the major partners in the proportion of 23: 23: 17 and 14 then their shares of loss would work out at:

1. 23/77 X 100 … 29.87% 2. 23/77 × 100 … 29.87% 3. 17/77 X 100 …. 22% 4. 14/77 X 100 … 18.18% approx.

37. If this latter interpretation is accepted to be correct, then the shares of the major partners in loss would be different from their shares in the profits as shown in the instrument. So, that interpretation cannot be said to be correct. If on the other hand the former interpretation is accepted to be correct, then 23 nP. of the loss would be left undivided and to that extent the partners' shares in loss would not be considered as specified in the instrument. Therefore, both the interpretations cannot be accepted as correct.

38. The only interpretation that is possible is that the shares of the major partners in loss in the firm have not been specified in the instrument of partnership. We cannot for this purpose take recourse to section 13(b) of the Indian Partnership Act. Section 13(b) of the Indian Partnership Act says that, subject to an agreement to the contrary, the shares of the partners, if not specified, will be taken as equal. That clause would not apply to this case, because the shares of the partners are specified in the instrument. Thus, our finding is that the shares of the major partners in losses have not been specified in the instrument of partnership and the Tribunal was in error in coming to a contrary conclusion.

39. This will take us to the next question whether non-specification of the shares of the partners in losses would disentitle the firm from getting registration. On this question there appears to be a conflict of judicial opinion. The Gujarat High Court in Thacker & Co. v. Commissioner of Income-tax has taken one view and the Mysore High Court in Sannappa & Son's v. Commissioner of Income-tax and the Allahabad High Court in Hiralal Jagannath Prasad v. Commissioner of Income-tax and in Laxmi Trading Co. v. Commissioner of Income-tax have taken another view. The Gujarat High Court has taken the view that in order to entitle a firm to obtain registration under the Income-tax Act, it is necessary for the partners to specify not only their shares in the profits, but also in losses. On the other hand, the Mysore and Allahabad High Courts have held that non-specification of shares in losses in the instrument of partnership would not disentitle the firm from getting registration. Our attention has also been invited to the decision of the Division Bench of this court in R.C No. 50 of 1966 in Commissioner of Income-tax v. Mandyala Govindu & Co. Following the decision of the Gujarat High Court, Chinnappa Reddy and Madhava Reddy JJ., in the above case, have held that non-specification of the shares of individual partners in losses in the instrument is fatal to the grant of registration. This decision is binding on us. This decision is also in accordance with the view expressed by the Gujarat High Court, with which view we also agree.

40. We, therefore, hold that non-specification of shares of the individual partners in losses in the instrument of partnership is fatal to the grant of registration. We, accordingly, answer the question referred to us in the negative and against the assessee. The assessee shall pay the costs of these references to the Commissioner of Income-tax. Advocate's fee is Rs. 250 in each of the referred cases.

41. Question answered in the negative.