Allowed

M/S Suresh Brothers v. Commisner of Income Tex

Chhattisgarh HC8 Jul 2012MCC/113/1991

Case brief

AI extract

What is this about?

This is an order allowing an application under Section 256(2) of the Income Tax Act. The High Court held that the questions framed by the assesse regarding partnership constitution and tax provisions are questions of law, not fact, and are referable to the High Court.

What did the court decide?

Application allowed. Tribunal directed to refer the case to the Court under Section 256(1) of the Act within three months with the three questions of law.

M/S Suresh Brothers Vs Commisner of Income Tex — Income Tax | Chhattisgarh HC (2012)

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iSS"TH£ n3.GH COUfiT OF HADHYA PRABESH AT JAB^iLBUR •C.C. HO. APPLICANT : 'M/s. Suresh Bro-fchfers, Malv.LYa; Road, RAIPUR. (M.P..5. CF0000057184

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RESPONDENT : Commissioner o'£ Income-tax, JABALPUR. APPLICATION UNDER SECTION 256(2) O.FTHEINCpME1&X_A€T FOR: A DIRBC7IOH TO THE INCOI4E T&X ADPHuLATE^TRIBCTN&£,: NAGPUR BENCH, HAGPUR, 'TO BRA^'f A STATEMEHT_OP CASE _&HB REFER THE QUESTIOHS QF LAW.

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<'!..••!,. j:j r ^i'iy:.'".Sfe:(i'|j^;tS::«»i |S JS. si''"'^'/^y •-"•^^yr.^^-4

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r A

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HIGH COURT OF CHHAmSGARH AT BILASPUR

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DB: HON'BLEMR. ABHAY MANOHAR SAPRE SB HON'BLE MR. G. MINHAJUDDIN. JJ.

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M. C. C. No.ll3ofl991

Applicant

M/s. Suresh Brothers

Versus

Respondent

Commissioner of Income Tax

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Present:

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Shri S. Rajeshwar Rao and Shri MK Sinha, counsel for the applicant. Shri Anand Dadariya, counsel for the respondent.

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Application under Section 256(2) of the Incoine Tax Ac£

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O R D ER

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(Passed on 9th July, 2012)

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The following order of the Court was passed by Abhav Manohar Saore, J.

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Heard.

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This is an application made by the Assessee under Section 256 (2) of the Income Tax Act (for short hereinafter called "the Act" ) against order dated 29.8.1990 passed by the Income Tax Appellate Tribunal (for short called "the Tribunal") in R.A. No.208/Nag/89.

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By impugned order, the Tribunal dismissed the application raade by the assessee under Section 256 (1) of the Act and declined to refer the question of law proposed by the assessee to this Court for its answer on the ground that the question proposed by the assessee are not referable questions and being questions of fact, can not be referred.

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So the question that arises for consideration in this application is whether the Tribunal was justi&ed in

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' ..-^

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dismissing the application made by the assessee on the ground that the question proposed by the applicant (assessee) are questions of fact and hence, can not be said to be the referable question to this Court under Section 256 (1) of the Act for being answered by this Court.

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The assessee has proposed following three questions as referable questions of law to this Court.

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"1) Under fhe facts and
circuinstances of the case, was the Tribunal right in holdingthat there was merely a change in the constitution of fhe firm on the deafh of fhe deceased partner and not a dissolution of the firm itselfin spite ofdeed ofdissoludon dated6-8-1979?
2) Under the facts and
circuinstances of the case, was the
Tribunal right m upholding the vaUdity of single assessinent applying the
provisions of Section 187(2) dealing wifh change in the constitution of the
fimi and holding fhat provision of
Section 188 dealing with succession of firmhadno application?
3) Under the facts and
circurastances of the case, was the
Tribunal right in holding that provision of Section 144-B were applicable to fhe facts ofthe case?"

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The aforesaid three questions arises out of the assessment year 1980-81 and relates to the assessee, which was a partnership firra engaged in the business of purchase and sale of crockery, glass-wares, stainless steel-wares etc. at Raipur at the relevant time.

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Having gone through the orders of assessing officer, Comniissioner oflncoine Tax (Appeals), and lastly two orders of Tribunals viz the order passed in the appeal and then order dismissing the application made by the assessee under Section 256 (1) of the Act and on perusal of the three questions proposed by the applicant quoted supra, we are of the considered opinion, that the questions proposed by the applicant are undoubtedly the questions of law and referable

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one to this Court under Section 256 (1) ibid for their answer on merits. In other words, the questions proposed are not questions^{of fa.et andtheydoariseoutof theorder} passed^by the Tribunal as being questions of law and hence are referable one.

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Indeed on niere perusal of the questions, it would appear that they involve interpretation of a document namely partnership deed, and further involves the question as to what is the effect of death of a partaier on the constitution of partnership such as whether it will amount to its dissolution or amount to its change without resulting in its dissoludon and lastly applicability of Section 144-B and Section 187 (2) /Section 188 ibid to the facts ofthe case.

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To answer these questions, it does not involve any appreciation of evidence. It was also not brought to our notice by fhe learned counsel for the Revenue (CIT) that any proposed question is covered by the decision of Supreme Court or by jurisdictional High Court.

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It is not necessary for us to raention the facts in detail in our order, but now it is for the Tribunal to refer to this Court the statement of the case under Section 256 (1) of the Act setting out therein the material facts to enable this Court to answer the three questions, which we have asked the Tribunal to refer to this Court.

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In the light of foregoing discussion, the application deserves to be allowed. It is accordingly allowed. The Tribunal is directed to refer the case to this Court under section 256 (1) of the Act with statement of case together with three questions of law said to arise out of the Tribunal for their answer by this Court as per Section 256 (1) of the Act, within three moths: The questions to be referred to this Court along with stateruent of case are these:-

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"1) Whether in the facts and circumstances of the case, the Tribunal was right in holding that there was merely a change in the constitution of

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the firm on the death of the deceased partner and not a dissolution of the firin itself in spite of deed of dissolution dated 6-8-1979?

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Whether in the facts and circurastances of the case, the Tribunal was right in upholding the validity of single assessment by applying the provisions of Section 187(2) dealing with change in the constitution of the firm and holding that provision of Section 188 dealing with succession of firm had no application?

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Whether in the facts and circumstances of the case, the Tribunal was right in holding that provision of Section 144-B were applicable to the facts of the case?"

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No cost.

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~~" Sd/-
Sd/-
G. Minhajuddin
Abhay Manohar Sapre
Judge
Judge

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Bini

M/S Suresh Brothers v. Commisner of Income Tex

Case brief

What is this about?

What did the court decide?

M/S Suresh Brothers v. Commisner of Income Tex

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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