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Case Number

O.C.J Income-tax Reference No. 3 of 1940

Attorney(S)

Sir Jamshedji Kanga, for the assessees.
M.G Setalvad, Advocate General, for the Commissioner.

Judges

Sir John Beaumont, C.J
Mr. Kania, J.

Acts

Indian Income-tax Act by the addition of s. 16(3)
Page: 388Income-tax (Amendment) Act, 1939, r. 4
s. 26-A of the Indian Income-tax Act,
s. 16(3) of the Income-tax Act,
INDIAN INCOME TAX ACT
INCOME TAX ACT
sub-s. (2) rules

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Smart Summary

Summary of Opinion — Reference by Commissioner of Income-tax (Central Talkies Circuit, Matunga)

Factual and Procedural Background

This is a reference made by the Commissioner of Income-tax raising the question whether there was any evidence to justify the appellate officers' finding of fact that the partnership stated to be in existence by the deed of 14 July 1937 was not a genuine partnership.

The assessees conducted business as a firm under the name Central Talkies Circuit, Matunga. Prior partnership instruments (including a deed of 28 July 1936) showed partners and their shares, including V.H. Desai, his wife, his minor son, his adult son and outside partners. After an amendment (s.16(3)) to the Indian Income-tax Act (effective from 1 April 1937) that required the shares of a wife or minor son in a partnership to be included in the income of an assessee, a new partnership deed dated 14 July 1937 was executed.

Under the 14 July 1937 deed, V.H. Desai held three and a half annas, and V.H. Desai's mother (Vijayabai M. Desai) was substituted for his wife and minor son and was shown with four and a half annas. It was not disputed that this alteration was prompted by the amendment to s.16(3).

On application for registration of the firm, the Income-tax Officer refused registration on the ground that the partnership deed was prepared to avoid the incidence of the new s.16(3). The Assistant Commissioner thereafter called for and examined the books of the alleged partnership, concluded that there was no genuine partnership, and refused registration. The Commissioner agreed with that conclusion and referred the question to the Court as stated above.

Legal Issues Presented

Whether there was any evidence to justify the appellate officers' finding of fact that the partnership stated to be in existence by the deed of 14 July 1937 was not a genuine partnership.
Whether, under section 26-A of the Indian Income-tax Act and the rules (rr. 2–4) made thereunder (and as clarified by the Income-tax (Amendment) Act, 1939), the Income-tax authorities have power to inquire into the genuineness of a partnership deed and whether the shares stated in the deed correctly represent the individual and beneficial shares of the partners.

Arguments of the Parties

Assessees' Arguments

The assessees contended that the evidence produced before the Assistant Commissioner was not such as could possibly justify him in refusing to register the firm (i.e., that the material did not support a finding that the partnership was not genuine).
The assessees asserted that Vijayabai (the mother) had been admitted as a partner with a four and a half annas share in consideration of capital brought by her into the business; this allegation was the only ground put forward in support of her share.

Revenue's Arguments (Income-tax Officer / Assistant Commissioner / Commissioner)

The Income-tax Officer initially refused registration on the ground that the partnership deed had been prepared solely to avoid the operation of s.16(3) of the Income-tax Act — i.e., to avoid taxation arising from the new provision affecting wife and minor son's shares.
The Assistant Commissioner (and the Commissioner who agreed) relied on evidence including: a large cash balance in the partnership (nearly a lakh and a half) which made it unnecessary to secure a new finance partner; absence of proof that the mother had in fact brought in any capital or even had capital to bring in; and absence of evidence that the mother knew anything about or assisted in the conduct of the business.
On examination of the books, entries credited to Vijayabai (amounting to about Rs. 20,000 in two entries) were treated by the Assistant Commissioner as mere book entries and insufficient to prove she contributed capital as alleged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Bisweswarlal Brijlal (1930) 57 Cal. 1336	Recognising authority of the taxing authorities to inquire whether a partnership deed put forward for registration is genuine.	The Court (Kania, J.) relied on this decision to support the proposition that the Income-tax authorities have power to inquire into the genuineness of a deed and, by necessary implication, whether the shares stated are correctly shown.

Court's Reasoning and Analysis

The Court's analysis proceeds through two complementary strands in the opinions delivered (Beaumont, C.J. and Kania, J.).

On motive to reduce taxation: Both Judges emphasise that the motive of a taxpayer to arrange affairs so as to reduce tax liability is not, by itself, a ground for rejecting a partnership deed. Beaumont, C.J. states that taxation is legal or non-existent and that any person is entitled to conduct affairs within the law so as to avoid taxation. Kania, J. reiterates that the motive to get round the amendment of s.16(3) was not a proper basis for refusing registration.

On the statutory scheme and the scope of inquiry: The Court examined section 26-A of the Indian Income-tax Act and the relevant rules (rr. 2–4). Kania, J. explained that the amendment to r.4 in 1939 clarified that registration is proper only if the Income-tax Officer is satisfied that there is a firm in existence constituted as shown in the instrument of partnership. Both Judges concluded that, under either the former or the amended wording, the Income-tax authorities are entitled to inquire whether the deed produced for registration truly constitutes the partnership it purports to create and whether the shares stated are truly the individual and beneficial shares.

Application to the facts: The Assistant Commissioner examined the books of account. The applicants relied solely on the assertion that Vijayabai had been admitted as a capitalist partner who had brought capital into the business; the books showed two entries totalling about Rs. 20,000 credited to her, but the Assistant Commissioner concluded those were mere book entries and did not prove a substantive capital contribution. Beaumont, C.J. also emphasised other negative indicia relied on by the Assistant Commissioner and Commissioner (large cash balance of nearly a lakh and a half making a new finance partner unnecessary; no evidence mother had capital to contribute; no evidence mother took part in conducting the business).

Both Judges stressed the limited scope of the Court on such a reference: the question posed is whether there was any evidence before the appellate officers to justify their finding. If such evidence existed, the appellate officers' conclusion must stand and the Court will not reweigh the facts. On the record, the Assistant Commissioner did have material — both positive (book entries credited to Vijayabai) and negative (absence of proof of capital, absence of participation, existing large cash balance) — which could lead him to find the putative partnership not genuine.

Kania, J. further analysed that if the Commissioner has power to inquire into genuineness of the deed, it necessarily includes determination whether the shares stated are correctly shown. He accepted that no reported case directly raised the precise question of correctness of stated shares but treated the power of inquiry as encompassing that issue; he applied that to conclude the Assistant Commissioner was entitled to reject the applicants' claim that Vijayabai's four and a half annas arose from capital contribution where the documentary evidence did not satisfy him.

Holding and Implications

Holding: The Court answered the referred question in the affirmative — there was evidence to justify the appellate officers' finding that the partnership as stated in the deed of 14 July 1937 was not a genuine partnership. The reference was rejected, and the assessees were ordered to pay costs.

Implications:

The immediate effect is that the Assistant Commissioner's and Commissioner's conclusion that the 14 July 1937 deed did not establish a genuine partnership (as to Vijayabai's alleged four and a half annas beneficial share) stands; the application for registration was properly refused on that factual basis.
The Court confirmed that Income-tax authorities, under section 26-A and the relevant rules (rr. 2–4), have jurisdiction to inquire into the genuineness of a partnership deed and, where appropriate on evidence, to conclude that the shares shown are not the true beneficial shares.
The opinion does not purport to establish a novel legal principle beyond these applications; the decision upholds the factual conclusion on the record before the Assistant Commissioner and does not re-open the factual inquiry or set new sweeping precedent beyond affirming the authorities' inquiry power in the statutory context described.

Attorneys recorded in the opinion: for assessees — Messrs Motichand & Devidas; for Commissioner — Mr. D.H. Nanavati (Solicitor to Central Government at Bombay).

Final court statement appearing in the opinion: "Reference rejected."

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Central Talkies Circuit, In Re

Beaumont, C.J:—

This is a reference made by the Commissioner of Income-tax raising the question:

“Whether there was any evidence to justify the appellate officers' finding of fact that the partnership stated to be in existence by the deed of July 14, 1937, was not a genuine partnership.”

The assessees are a firm carrying on business in the name of Central Talkies Circuit, Matunga, and down to the partnership deed of July 14, 1937, the partners were: V.H Desai with three annas share (he is described as the original sub-proprietor), his wife with three annas share, his minor son with two annas and his major son two annas and two outside partners. As from April 1, 1937, an amendment was introduced into the Indian Income-tax Act by the addition of s. 16(3) under which the share of a wife or minor son in a partnership has to be included in the income of an assessee. Having that provision in mind, a partnership deed of July 14, 1937, was executed, under which the mother of V.H Desai was substituted for his wife and minor son, and she was given four and a half annas. That is to say, the five annas, which had previously been divided between the wife and the minor son, were distributed as to half anna for V.H Desai and four and a half annas for the mother, who thus became entitled to the largest share in the firm. It is, of course, not disputed Page: 387that the object of the alteration was to avoid the effect of s. 16(3) of the Indian Income-tax Act.

On an application to register the firm, the Income-tax Officer refused registration on the ground that the partnership deed produced was one prepared only to avoid what he calls “proper taxation” owing to the operation of the new s. 16(3) of the Act. That is not a good ground for refusing to register. I do not like the expression “proper taxation.” Taxation is either legal as falling within the terms of the taxing Act, or non-existent. As has been pointed out many times by this and other Courts, any one is entitled so to conduct his affairs within the law as to avoid incidence of taxation, and if a man finds that he will suffer less in taxation by carrying on business in partnership with his mother rather than his wife, he is entitled to select his mother. But the partnership must be a genuine partnership. The Assistant Commissioner, no doubt, appreciated that the Income-tax Officer had not put his case on the right ground, and he called for the books of the alleged partnership and came to the conclusion that there was no genuine partnership, and with that conclusion the Commissioner agrees. He relies on the fact that a large cash balance of nearly a lakh and a half existed in this partnership in 1937, which made it unnecessary to secure a new financing partner, and that it is not proved that the mother has in fact brought in any capital, nor is it proved that she had any capital to bring in. I think he might also have relied on other evidence of a negative character, namely, that there was no evidence that the mother knew anything about the business, or had assisted in the conduct of the business in any way. The contention of the assessees is that the evidence produced before the Assistant Commissioner was not such as could possibly justify him in refusing to register the firm.

By s. 26-A of the Indian Income-tax Act, application may be made to the Income-tax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of the Act, and then under sub-s. (2) rules may be made. Under the rules, which were in force down to April 1, 1939, it is provided in r. 2 that any firm constituted under an instrument of partnership specifying the individual share of the partners may register with the Income-tax Officer the particulars contained in the instrument. Then it is provided that the application must contain certain particulars, including the names of the partners in the firm with the shares of each in the business. Then r. 4 provides that on the production of the original instruments of partnership or on the acceptance by the Income-tax Officer of a certified copy thereof, the Income-tax Officer shall register the instrument and issue a certificate. Since the coming into operation of the Page: 388Income-tax (Amendment) Act, 1939, r. 4 has been altered, and it now reads: “If, on receipt of the application referred to in r. 3, the Income-tax Officer is satisfied that there is a firm in existence constituted as shown in the instrument of partnership,” then he has to register. Having regard to the authorities on the old rule, I think that the new rule really does not alter the law as it previously existed; it only makes the true effect of r. 4 clearer than it was under the previous wording. Under the old rule the Courts held that the Income-tax Officer was entitled to consider whether the deed produced for registration really constituted a partnership as alleged. Under r. 2 the only person who can apply for registration is a firm constituted under an instrument of partnership specifying the individual shares of the partners, which must, of course, mean specifying correctly the individual shares of the partners. I think it is open, whether under the old rule or the new rule, to the Income-tax Officer to say that the shares which appear in the deed are not the true shares of the partners, and therefore there is no proper application by the requisite firm. Speaking for myself, I should say that if it were shown that one of the partners was only a nominee of a share allotted to him or her for another partner, the deed would not then specify correctly the individual shares. I think it must specify correctly the individual and beneficial shares, because that is a matter which is relevant from the point of view of the Income-tax authorities. If the Assistant Commissioner had any evidence before him to lead to the conclusion that the mother in this case was not really entitled to a beneficial interest of four and a half annas share, I think he was justified in refusing to register the deed.

The only question before us is whether there was any such evidence. If there was, his conclusion must stand, as we are not sitting in appeal on the Assistant Commissioner. I am not prepared to say in this case that there was no evidence before the Assistant Commissioner on which he could find that this partnership was not proved to exist in the terms specified in the deed sought to be registered. The grounds on which he relies, coupled with the absence of any evidence that the mother really was for any purpose,—finance, working or otherwise—a partner in this firm do afford some ground on which the Assistant Commissioner could hold that this never was a genuine partnership, that it was a mere device to escape payment of income-tax, and that it was not an effective means of evading such payment.

In my opinion, therefore, the question raised must be answered in the affirmative. The assessees to pay costs.

Kania, J.:—In this matter an application was made for the registration of the firm for the year 1932-1933 disclosing therein the names of Page: 389the following persons as partners with the shares mentioned against their names:—

1. V.H Desai .. .. .. .. .. 4 annas 2. H.V Desai (his adult son) .. .. .. .. 2 annas 3. Taramati V. Desai .. .. .. .. .. 4 annas 4. Ratnagauri C. Munim .. .. .. .. 5 annas 5. Charity .. .. .. .. .. .. 1 anna

By another deed prepared later on, and dated July 28, 1936, the shares of the partners were registered as follows:—

1. V.H Desai (original sub-proprietor) .. .. .. 3 annas 2. T.V Desai (wife of No. 1) .. .. .. .. 3 annas 3. M.V Desai (minor son of No. 1) .. .. .. 2 annas 4. H.V Desai (adult son of No. 1) .. .. .. 2 annas 5. Ratnagauri C. Munim .. .. .. .. 3 annas 6. Nandkumar C. Munim .. .. .. .. 2 annas 7. Charity .. .. .. .. .. 1 anna

Thereafter there came the amendment of s. 16(3) of the Income-tax Act, in respect of shares standing in the name of a wife and minor son of a partner. On that provision being made in the Income-tax Act, a new partnership deed dated July 14, 1937, was executed. The partners therein mentioned were V.H Desai with three and a half annas share, his mother (Yijayabai M. Desai in place of T.V Desai and M.V Desai) with four and a half annas share, and the remaining partners with their shares as in the previous deed. It is not disputed that this reshuffling of the shares was made because of the amendment of the Income-tax Act. The Income-tax Officer, before whom the matter came first, rejected the partnership deed dated July 14, 1937, as the motive was to get round the amendment. That was wrong. The motive of a person in making alterations in the mode of his doing business is no ground for rejecting the registration of a firm. As has been pointed out repeatedly, if any subject could manage his business affairs as to pay the least tax which he might be liable to, he may do so provided the whole action is within the law.

In the present case when this partnership deed was put before the Income-tax Officer, he had to inquire under s. 26-A, read along with rr. 2 to 4, whether the firm constituted under the instrument of partnership and stating the particulars contained in the instrument was a genuine partnership. The rule, as amended by the Act of 1939, in terms gives power to the Income-tax authorities to make the inquiry and determine whether the deed is genuine and also whether the partnership is constituted as stated in the deed. The words of old r. 2 are also sufficiently wide enough to include such an inquiry. The question whether the taxing authorities had the right to inquire whether the deed was a genuine one or not came to be considered in In re Bisweswarlal Brijlal (1930) 57 Cal. 1336 and a bench of Judges Page: 390held that they had that authority. No reference to r. 2 is found in the judgments there, but it is based on general principle of law. Rule 2, as it existed before April, 1939, in my opinion, supports that conclusion. A number of cases, which have been cited to us, show that the power to make the inquiry about the genuineness of the deed is recognised and affirmed by the Courts.

The question, then, is whether in the present case the Commissioner was right in holding that there was evidence on which he could come to the conclusion that the partnership deed as put forth was not genuine. The contention involves the question whether the statement of shares of the individual partners as mentioned in the deed is also correct. No reported case has been cited to us in which this last mentioned question has been specifically raised. It appears to me that if it is conceded that the Commissioner has the power to inquire whether the partnership deed as put forth by the applicants is genuine or not, it does involve a consideration whether the share of an individual partner as mentioned therein is also correctly stated or not. For example, if the share of a partner were stated to be five annas, and on inquiry and taking evidence the Commissioner definitely came to the conclusion that the share was four annas, the partnership agreement as put forth by the applicants would not be correct, and there appears to be little doubt that the Commissioner would be entitled to hold that the deed executed by the applicants was not a correct partnership deed. “Partnership”, as defined by the Partnership Act, and which definition is adopted by the Indian Income-tax Act, is a relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. It is that relationship, as set out in the partnership deed, which, the Commissioner had to determine, exists or not.

Approaching the question from that point of view, in the present case the applicants stated that Vijayabai was admitted as a partner with four and a half annas share in consideration of capital brought by her into the business. That is the only ground set up by the applicants in support of their allegation that this lady was given the share. The Assistant Commissioner made inquiries about this allegation. He looked into the books of account. The books contained two entries showing the total sum of about Rs. 20,000 credited to her. On considering the other entries the Assistant Commissioner came to the conclusion that those were mere book entries. It is not open to this Court to inquire whether that conclusion of the Assistant Commissioner is right or wrong. On looking into the evidence, which consists of the books of account of the partnership, he held that the only ground alleged by the applicants for giving this lady this large share in the partnership was not proved. In arriving at that conclusion, it is not possible for this Court to say Page: 391that there was no evidence. He had jurisdiction to hold that the only motive alleged for giving her this share was not proved to exist, and, therefore, in his opinion the statement that Bai Vijayabai was entitled to a four and a half annas share in this partnership was not proved.

It is not the case of the applicants here that Vijayabai was a trustee in respect of this share for Desai or for any other partner. If that case had been urged, it would have been inquired into, and I express no opinion as to what the result of the inquiry would have been. The applicants went to the Assistant Commissioner on the footing that a four and a half annas share was given to Vijayabai as a capitalist partner. The Assistant Commissioner found that the evidence was not satisfactory and came to a conclusion against the applicants. Under the circumstances it is not possible to say that there is no evidence for coming to the conclusion that the partnership agreement as put forth did not correctly represent the state of affairs, and, therefore, the reference fails.

Attorneys for assessees: Messrs Motichand & Devidas.

Attorneys for Commissioner: Mr. D.H Nanavati, Solicitor to Central Government at Bombay.

Reference rejected.

N.K.A

Central Talkies Circuit, In Re

Summary of Opinion — Reference by Commissioner of Income-tax (Central Talkies Circuit, Matunga)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Assessees' Arguments

Revenue's Arguments (Income-tax Officer / Assistant Commissioner / Commissioner)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Central Talkies Circuit, In Re

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