PETITIONER: COMMISSIONER OF INCOME-TAX, AHMEDABAD Vs. RESPONDENT: A. ABDUL RAHIM & CO., BARODA DATE OF JUDGMENT: 04/11/1964 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. SIKRI, S.M. CITATION: 1965 AIR 1703 1965 SCR (2) 13 CITATOR INFO : R 1965 SC1708 (1,4) MV 1966 SC1490 (23) F 1967 SC 383 (14) RF 1969 SC 493 (12) RF 1970 SC1343 (22) R 1971 SC 383 (5) D 1986 SC1152 (6,12) ACT: Income Tax Act, 1922, Section 26A registration of partnership-More than two partners--Otherwise genuine Whether can be refused registration when one partner is benamidar. Benamidar-Status of-If trustee of the real owner. HEADNOTE: A partnership consisting of three partners was reconstituted to take in a 4th partner who was a nephew of, and was given a part out of his own share by, one of the existing partners. The application by the new partnership firm for registration under s. 26-A of the Income-tax Act, 1922, was rejected by the Income-tax Officer on the ground that as the new partner was a benamidar, the partnership was not a genuine one. The Appellate Assistant Commissioner, the Appellate Tribunal and the High Court, all took the view that the new partnership agreement was valid in law and the fact that one of the partners was a benamidar of another was not a sufficient ground for refusing to register the firm. It was contended on behalf of the Revenue that apart from the fact that the 4th partner was a dummy and therefore the new partnership was not a genuine one, the actual share of the old partner was not what was stated in the agreement but was the total of his apparent share and that of the benamidar; to this extent the agreement did not contain a correct specification of the individual shares of partners as required under s. 26-A and registration was, therefore, rightly rejected. HELD : (dismissing the appeal) (i) When a firm makes an application under s. 26-A of the Act for registration, the Income-tax Officer can reject the application if he comes to the conclusion that the partnership is not genuine or the instrument of partnership has not specified correctly the individual shares of the partners. But once he comes to the conclusion that the partnership is a genuine and valid one, he cannot refuse registration on the ground that one of the partners is a benamidar of another. If the partnership is genuine and legal, the share given to the benamidar will be correct specification of his individual share in the partnership. The beneficial interest in the income pertaining to the share of the said benamidar -nay have relevance to the matter of assessment, but non in regard to the question of registration. [21D-F] R. C. Mitter & Sons v. C.I.T., Calcutta, (1959) Supp. 2 S.C.R. 641; C.I.T. Madras v., Sivakasi Match Exporting Co., (1964) 53 I.T.R. 204; Sir Sunder Singh Majithia v. C.I.T. C.P. & U.P., (1942) 10 I.T.R. 457, referred to. The Central Talkies Circuit, Matunga, (1941) 9 I.T.R. 44, considered. Hiranand Ramsukh v. C.I.T., Hyderabad, (1963) 47 I.T.R. 598; P. A. Raju Chettiar v. C.I.T., Madras, (1949) 17 I.T.R. 51, distinguished. (ii) A benamidar is a mere trustee of the real owner and has no beneficial interest in the property or the business of the real owner. As in the case of a trustee, he possesses the legal character to enter into a 14 partnership with another, and the fact that he is accountable for his profits to, and has a right to be indemnified for his losses by, a third party or even by one of the partners does not disgorge him to the said character. [19D-E, G-H] Gur Narayan v. Sheo Lal Singh, (1918), L.R. 46 I.A. 1, Aruna Group of Estates, Bodinayakanur v. State of Madras, (1962) 2 M.L.J. 264, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 982 of 1963.
Appeal from the judgment and order, dated April 4, 5, 1961
of the Gujarat High Court in Income-tax Reference No. 8 of
1960.
K. N. Rajagopala Sastri and R. N. Sachthey, for the
appellant.
T. A. Ramachandran and O. C. Mathur, for the respondent.
The Judgment of the Court was delivered by
Subba Rao, J. This appeal by certificate raises the question
whether the Income-tax Officer can refuse to register a
genuine partnership entered into between more than 2 persons
on the ground that one of them is only a benamidar for
another.
The relevant facts may briefly be stated. Three persons by
name Abdul Rahim Valibhai, Abdulla Rehman and Abdul Rahim
Malanghbhai, constituted a partnership having 9 annas, 5
annas and 2 annas share respectively. The said partnership
was carrying on business in goat and sheep skins. From the
beginning of Samvat year 2012 (15-11-1955 to 2-11-1956)
there was a change in the constitution of the said firm. A
4th partner by name Abdul Rehman Kalubhai was inducted into
the partnership with 2 annas share carved out of the 9 annas
share of Abdul Rahim Valibhai. The said Abdul Rehman
Kalubhai is a nephew of Abdul Rahim Valibhai. On March 6,
1956, a partnership deed was executed between the said 4
persons. Under the said partnership, Abdul Rahim Valibhai,
Abdulla Rehman, Abdul Rahim Malanghbhai and Abdul Rehman
Kalubhai had 7 annas, 5 annas, 2 annas and 2 annas share
respectively. On May 8, 1956, the said firm presented an
application to the Income-tax Officer for its registration
under s. 26A of the Indian Income-tax Act, 1922, hereinafter
called the Act. The Income-tax Officer held that the
partnership was a bogus one and, on that finding, refused to
register it. The assessee took up the matter on appeal to
the Appellate Assistant Commissioner, who held that the
partnership agreement was valid in law and that the fact
that one of the partners was a benamidar of another was not
a ground for refusing to register the firm, though
15
it might entitle the Income-tax Officer to consider the
income pertaining to the share of the benamidar as part of
the income of the real owner in assessing the latter’s
income to tax. The Income-tax Officer questioned the
correctness of the decision by preferring an appeal to the
Appellate Tribunal, Bombay Bench. The Tribunal also held
that the partnership was a genuine one and that the fact
that one of the partners gave away a small part of his share
to his nephew would not disqualify the partnership from
being registered under s. 26A of the Act. At the instance
of the Revenue the following question was referred to the
High Court
“Whether a partnership in which one partner is
the benamidar of another partner could be
registered under s. 26A of the Indian Income-
tax Act.”
The learned Judges of the High Court thought that the
question as framed did not really bring out the true matter
in controversy between the parties and, therefore, they
reframed the question as follows :
“Whether on the facts and in the circumstances
of the case, the partnership constituted under
the instrument of partnership, dated 6th March
1956 could be registered under Section 26A of
the Indian Income-tax Act.”
The learned Judges answered the question in the affirmative.
They held that as the partnership was a genuine one the fact
that one of the partners had no beneficial interest in his
share by reason of some arrangement between him and another
partner would not disentitle the firm from being registered
under the Act. Hence the appeal.
Mr. Rajagopala Sastri, learned counsel for the Revenue,
raised before us the following two points : (1) Abdul Rehman
Kalubhai is only a dummy and therefore, the partnership is
not a genuine one; (2) even if Abdul Rehman Kalubhai is a
benamidar of Abdul Rahim Valibhai in respect of the 2 annas
share in the partnership, Abdul Rahim Valibhai has in fact 9
annas share in the partnership; as the partnership deed
shows that he has only 7 annas share instead of 9 annas
share, there is no correct specification of his individual
share within the meaning of s. 26A of the Act and,
therefore, the Income-tax Officer rightly rejected the
firm’s application for registration under s. 26A of the Act.
Learned counsel for the respondent, on the other hand,
argued that the question whether the partnership was genuine
or not is one of fact and indeed presumably for that reason
the question
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of genuineness was not referred to the High Court by the
Tribunal and that the learned counsel for the Revenue cannot
now raise that question before this Court. He further
argued that, as the partnership is genuine, the circumstance
that under some internal arrangement one of the partners is
a benamidar of another partner will not detract from its
validity or disqualify it from being registered under the
Act.
To appreciate the contentions it will be convenient at the
outset to read the relevant part of S. 26A of the Act and
also the rules made thereunder.
Section 26A. (1) 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
this Act and of any other enactment for the
time being in force relating to income-tax or
super-tax.
(2) The application shall be made by such
person or persons, and at such times and shall
contain such particulars and shall be in such
form, and be verified in such manner, as may
be prescribed; and it shall be dealt with by
the Income-tax Officer in such manner as may
be prescribed.
Rules 2 to 6B of the Rules made under s. 59 of
the Act deal with the registration of firms.
Rule 2. Any firm constituted under an
Instrument of Partnership specifying the
individual shares of the partners may, under
the provisions of section 26A of the Indian
Income Act, 1922 (hereinafter in these rules
referred to as the Act), register with the
Income-tax Officer, the particulars contained
in the said Instrument on application made in
this behalf.
Such application shall be signed by all the
partners personally……….
Rule 4. If, on receipt of the application
referred to in Rule 3, the Income-tax Officer
is satisfied that there is or was a firm in
existence constituted as shown in the
instrument of partnership and that the
application has been properly made, he shall
enter in writing at the foot of the instrument
or certified copy, as the case may be, a
certificate in the following form ……..
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Rule 6B. In the event of the Income-tax
Officer being satisfied that the certificate
granted under Rule 4, or under Rule 6A, has
been obtained without there being a genuine
firm in existence, he may cancel the
certificate so granted.
On a consideration of the said provisions, among others,
this Court in R. C. Mitter & Sons. v. Commissioner of
Income-tax, Calcutta(1), speaking through Sinha, J., as he
then was, held that in order a firm may be entitled to
registration under s. 26A of the Act, the following
essential conditions must be satisfied, viz., (i) the firm
should be constituted under an instrument of partnership,
specifying the individual shares of the partners; (ii) an
application on behalf of, and signed by, all the partners
and containing all the particulars as set out in the Rules
must be made; (iii) the application should be made before
the assessment of the firm under section 23, for that
particular year; (iv) the profits or losses if any of the
business relating to the accounting year should have been
divided or credited, as the case may be, in accordance with
the terms of the instrument; and (v) the partnership must be
genuine and must actually have existed in conformity with
the terms and conditions of the instrument of partnership,
in the accounting year. This Court again in Commissioner of
Income-tax, Madras v. Sivakasi Match Exporting Co. (2) held
:
“The jurisdiction of the Income-tax Officer
is, therefore, confined to the ascertaining of
two facts, namely, (i) whether the application
for registration is in conformity with the
rules made under the Act, and (ii) whether the
firm shown in the document presented for
registration is a bogus one or has no legal
existence.”
It is, therefore, settled law that if a
partnership is a genuine and valid one, the
Income-tax Officer has no power to reject its
registration if the other provisions of s. 26A
of the Act and the rules made thereunder are
complied with.
In the present case the partnership was found
to be a genuine one. All the formalities
prescribed by the rules have been complied
with. The individual shares of the partners
as shown in the Instrument of Partnership have
been specified in the application. Therefore,
unless there is some legal impediment in the
way of a benamidar of one of the partners
being a partner of the firm, the Income-tax
Officer would not be exercising his
jurisdiction if he rejected the application
for registration.
(1) 1959] Supp. 2 S.C.R. 641.
(2)(1964) 53 I.T.R. 204,209.
18
The first question, therefore, is whether the
benamidar of a person can be a partner of a
firm. Under S. 2(6B) of the Act, “firm”,
“partner” and “partnership” have the same
meanings respectively as in the Indian
Partnership Act, 1932 (IX of 1932) : provided
that the expression “partner” includes any
person who being a minor has been admitted to
the benefits of partnership. Under S. 4 of
the Indian Partnership Act, “Partnership” is
the relation between persons who have agreed
to share the profits of a business carried on
by all or any of them acting for all. If the
partnership is genuine, as it is held in the
present case, it follows that the 4 partners
mentioned in the partnership deed must be held
to have agreed to share the profits of the
business carried on by them in the manner
specified in the document. Indeed, in the
present case the Instrument of Partnership and
the application for registration contain clear
recitals that the 4 partners have clear and
definite shares in the profits of the firm.
The Judicial Committee in Sir Sundar Singh
Majithia v. Commissioner of income-tax, C.P. &
U.P. (1) posed the question that arises for
consideration of the Income-tax Officer under
s. 26A of the Act. Sir George Rankin,
speaking for the Board, said :
“When a document purporting to be an
instrument of partnership is tendered under
Section 26-A on behalf of a firm and
application is made for registration of the
firm as constituted under such instrument, a
question may arise whether the instrument is
intended by the parties to have real effect as
governing their rights and liabilities inter
se in relation to the business or whether it
has been executed by way of pretence in order
to escape liability for tax and without
intention that its provisions should in truth
have effect as defining the rights of the
parties as between themselves. To decide that
an instrument is in this sense not genuine is
to come to a finding of fact :…………….
In view of the finding given by the Tribunal that the
Instrument of Partnership was genuine, it follows that it
was not executed as a pretence in order to escape liability
for tax, but in truth it defined the rights and liabilities
of the parties between themselves.
This leads us to the question whether the benamidar can be
in law a partner of a firm. In the context of the right of
a benamidar to sue in his own name to recover immoveable
property, the
(1) (1942) 10 I.T.R. 457,461-462.
19
Judicial Committee in Gur Narayan v. Sheo Lal Singh(1)
defined the status of a benamidar in law thus :
“As already observed, the benamidar has no
beneficial interest in the property or
business that stands in his name; he
represents, in fact, the real owner, and so
far as their relative legal position as
concerned he is a mere trustee for
him…………. The bulk of judicial opinion
in India is in favour of the proposition that
in a proceeding by or against the benamidar,
the person beneficially entitled is fully
affected by the rules of res judicata.”
In Aruna Group of Estates, Bodinayakanur v. State of
Madras(2) a Division Bench of the Madras High Court, on the
basis of the said legal position, rightly held that the
benami character did not affect the benamidar’s capacity as
partner or his final relationship with the other members of
the partnership. It pointed out that “if any partner is
only a benamidar for another, it can only mean that he is
accountable to the real owner for the profits earned by him
from and out of the partnership.” Therefore, a benamidar is
a mere trustee of the real owner and he has no beneficial
interest in the property or the business of the real owner.
But in law, just as in the case of a trustee, he can also
enter into a partnership with others.
If so, what is the principle of law which prohibits the
benamidar of a partner from being also a partner along with
the said partner with others ? Qua the other partners, he
has separate and real existence; he is governed by the terms
of the partnership deed; his rights and liabilities are
governed by the terms of the contract and by the provisions
of the Partnership Act; his liability to third parties for
the acts of the partnership is co-equal with that of the
other partners; the other partners have no concern with the
real owner; they can only look to him for enforcing their
rights or discharging their obligations under the
partnership deed. Any internal arrangement between him and
another partner is not governed by the terms of the
partnership; that arrangement operates only on the profits
accruing to the benamidar; it is outside the partnership
arrangement. If a benamidar possesses the legal character
to enter into a partnership with another. the fact that he
is accountable for his profits to, and has the right to be
indemnified for his losses by, a third party or even by one
of the partners does not disgorge him of the said character.
(1) (1918) L.R. 46 I.A. 1, 9. (2) (1962) 2 M.L.J. 294.
20
It is true that different considerations may arise, if the
partnership is only between two persons of whom one is a
benamidar of the other. In that event the partnership may
be bad not because the benamidar has no power to enter into
the partnership but because the partnership in law is the
relationship between at least two persons and in the case of
a benamidar and the real owner in fact there is only one
person. It may also be that in a case where a benamidar is
taken as a partner with the consent of the other partners,
he will only be a “dummy”. We do not propose to express any
final opinion on the said two questions, as they do not
arise in this appeal.
A Division Bench of the Bombay High Court in The Central
Talkies Circuit, Matunga, In re(1) held that there was
evidence to justify the finding of the Income-tax
authorities that the alleged partnership was not a genuine
partnership and that they acted rightly in refusing to
register the firm. That finding was sufficient to dispose
of the reference before the Court. But Beaumont, C.J., in
the course of the judgment made some observations which lend
support to the contention of the appellant. The learned
Chief Justice said :
“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 the case was not really entitled to a
beneficial interest of 4 1/2 annas share, I
think he was justified in refusing to register
the deed.”
With great respect, we cannot, agree with the said
observations. If a benamidar has the character of a trustee
and, therefore, can enter into partnership with another in
his own name, the share allotted to him in the partnership
must be held to specify correctly his individual share
therein. Kania, J., as he then was, did not express any
opinion on this aspect of the case. A Division Bench of the
Andhra Pradesh High Court in Hiranand Ramsukh v. Com-
missioner of Income-tax, Hyderabad(1) held that a person
shown as a partner in a partnership deed was not a genuine
partner and
(1)(1941)91.T.R.44,52.
(2) 1963)47 T.R. 98.
21
therefore the Income-tax Officer was perfectly justified in
refusing to register the firm. There the assessee firm
originally consisted of 2 partners with equal shares,
namely, Ramprasad and Bhagwandas. After the death of
Bhagwandas, Ramprasad took his aunt, Mrs. Chandrabai, and
his minor son as partners. The Income-tax Officer held that
both Mrs. Chandrabai and Ramprasad’s minor son were not
genuine partners but were mere dummies, and they were shown
merely as partners to reduce the incidence of tax. As two
of the three partners were not genuine partners, the
partnership itself was not genuine. Though some of the
observations in the judgment are wide, that decision does
not touch the present case. The decision of the Madras High
Court in P. A. Raju Chettiar v. Commissioner of Income-tax,
Madras(‘) is also one where the finding was that the
partnership was not a genuine one. ‘Mat decision also is
besides the point.
The legal position may be stated thus: When a firm makes an
application under s. 26A of the Act for registration, the
Income-tax Officer can reject the same if he comes to the
conclusion that the partnership is not genuine or the
instrument of partnership does not specify correctly the
individual shares of the partners. But once he comes to the
conclusion that the partnership is genuine and a valid one
he cannot refuse registration on the ground that one of the
partners is a benamidar of another. If the partnership is
genuine and legal, the share given to the benamidar will
be the correct specification of his individual share in the
partnership. The beneficial interest in the income
pertaining to the share of the said benamidar may have
relevance to the matter of assessment, but none in regard to
the question of registration.
In the result, for the aforesaid reasons, we hold that the
answer given by the High Court-is correct. The appeal fails
and is dismissed with costs.
Appeal dismissed.
(1) (1949) 17 I.T.R. 51.
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