{"id":171985,"date":"2008-06-25T00:00:00","date_gmt":"2008-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-v-vs-the-on-25-june-2008"},"modified":"2017-08-08T15:25:30","modified_gmt":"2017-08-08T09:55:30","slug":"p-v-vs-the-on-25-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-v-vs-the-on-25-june-2008","title":{"rendered":"P.V vs The on 25 June, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
P.V vs The on 25 June, 2008<\/div>\n
Bench: Jayant Patel Kureshi, Akil Kureshi<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nITR\/46\/1999\t 16\/ 16\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nINCOME\nTAX REFERENCE No. 46 of 1999\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE JAYANT PATEL\n \n\n  \nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nP.V.\nTHAKAR, C\/O.M\/S.MUKUND - Applicant(s)\n \n\n \n\n\n \n\nVersus\n \n\n \n\n\n \n\nTHE\nCOMMISSIONER OF INCOME TAX - Respondent(s)\n \n\n=========================================================\n \nAppearance\n:\n \n\n \nMR SN\nDIVATIA for\nApplicant(s) : 1, \nMR MANISH R BHATT for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 25\/06\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE JAYANT PATEL)<\/p>\n
The
\n\tquestion referred to this Court at the instance of the assessee are
\n\tas under:-\n<\/p>\n
(1)\tWhether
\n\tthe Tribunal is right on facts and in law in holding that the
\n\tassessee’s wife and son are entitled to receive 1\/3rd
\n\tshare each from only 75% shares in the profit of the business in the
\n\tname and style of M\/s.Mukund and that they have no right to receive
\n\tany share from the remaining 25% share ?\n<\/p>\n
(2)\tWhether
\n\tthe Tribunal is right on facts and in law in holding that the
\n\tassessee is entitled to a deduction of only 50% and not 2\/3rd
\n\tof the total income from the business of M\/s.Mukund.\n<\/p>\n
\tAt
\n\tthe instance of Revenue, following questions are referred to this
\n\tCourt:-\n<\/p>\n
\t(1)\tWhether
\n\tthe Appellate Tribunal is right in law and on facts in confirming
\n\tthe order passed by CIT(A) directing the A.O. to exclude 2\/3rd
\n\tof the profits derived from M\/s.Mukund as having been accrued  in
\n\tfavour of the assessee’s wife and minor son, is on account of an
\n\tover-riding title ?\n<\/p>\n
\t(2)\tWhether
\n\tthe Appellate Tribunal is right in law and on facts in holding that
\n\tthe aspects of Section 64 have no application in the instant case ?\n<\/p>\n
\tThe
\n\tshort facts, which may be relevant for examining the questions are
\n\tas under:-\n<\/p>\n
\t3.1\t\tM\/s.Mukund
\n\twas carrying on the business of dealers of cloth and the said
\n\tbusiness was carried by a partnership firm w.e.f. S.Y. 2033 i.e.
\n\tupto 28.2.1977 and the partnership comprised of three partners
\n\tnamely; Shri Pravinchandra V. Thakar, Shri Kantilal P. Pandya and
\n\tShri N.N. Joshi at the initial stage.  Shri N.N. Joshi retired from
\n\tthe firm w.e.f. 28.2.1977 and the remaining partners continued the
\n\tbusiness of partnership firm from 1.3.1977. As per the partnership
\n\tdeed executed on 10.3.1977 between two remaining partners, share of
\n\tShri P.V. Thakar was 75%, whereas the share of Shri K.P. Pandya was
\n\t25%.\n<\/p>\n
3.2\t\tIt
\n\tis an undisputed position that Shri P.V. Thakar was partner in the
\n\tfirm in his capacity as Karta of HUF comprising of Shri P.V. Thakar
\n\tas Karta, his wife Smt. Ranjanben and his minor son Dhruman P.
\n\tThakar.  The partial partition of the aforesaid HUF was made by the
\n\tregistered deed of partial partition dated 19.1.1978 and the said
\n\tpartial partition was made effective from 19.4.1977.  Upon the
\n\tapplication of HUF under Section 171 of Income Tax Act (hereinafter
\n\treferred to as \u00fdSIT Act\u00fd\u00fd), the ITO vide order dated 17.3.1979
\n\tduly recognized such partial partition.  As per the term of the
\n\tpartition, each member of the said family had accepted his\/her share
\n\tin the above referred 75% share in profit of M\/s.Mukund in equal
\n\tproportion and it was also agreed that Shri P.V. Thakar shall
\n\treceive share as per the terms of the partnership deed executed
\n\tbetween Shri P.V. Thakar and the other partners of the firm.  In
\n\taccordance with the terms of the said Memorandum of partial
\n\tpartition, assessee had been duly showing the share of the income
\n\tfrom the said partnership after deducting 2\/3rd share
\n\tthereof as belonging to assessee’s wife and minor child in view of
\n\tthe over-riding title created in favour of his wife and minor son by
\n\tthe above referred registered deed of partial partition.  Such
\n\tcontinued from the A.Y. 1978-79 to 1987-88, which was also accepted
\n\tby the Assessment Officer.\n<\/p>\n
In
\n\tA.Y. 1987-88, the partnership firm of M\/s.Mukund was dissolved and
\n\tShri P.V. Thakar became sole proprietor of the said business. The
\n\tassessee has, in the return of income for A.Y. 1987-88 onwards shown
\n\tthe aforesaid income after deducting 2\/3rd share as
\n\tbelonging to his wife and minor son on account of the above referred
\n\tpartial partition and resulting over-riding title.  In A.Y. 1988-89,
\n\tthe assessee shown the income accordingly.  The A.O. came to the
\n\tconclusion that the entire income from the business of M\/s.Mukund
\n\trepresents individual income of the assessee and no part of the said
\n\tincome belongs to either Smt. Ranjanben P. Thakar, being wife or
\n\tDhruman P. Thakar, being minor son.  He also opined that partial
\n\tpartition made by HUF on 19.4.1977 was a colourable device made for
\n\tavoiding taxes.  In appeal by the assessee, CIT(A) directed the A.O.
\n\tto exclude 1\/3rd share of the profit each belonging to
\n\tthe assessee’s wife and minor son from the assessee’s income.  In
\n\tfurther appeal by the Revenue, the Tribunal while accepting the
\n\tover-riding title of wife and minor son held that the assessee’s
\n\twife and minor son had no right to receive any share from the
\n\tremaining 25% share of the profit derived from the business of
\n\tM\/s.Mukund and they will continue to receive 1\/3rd share
\n\teach from the 75% profit of the said business, which the said HUF
\n\toriginally had in the partnership and also that the assessee shall
\n\tbe entitled to a deduction of an aggregate amount of 50% of the
\n\ttotal income from the business of M\/s.Mukund by virtue of an
\n\tover-riding title in favour of the assessee’s wife and minor son.
\n\tIt is under these circumstances, the present reference to this Court
\n\ton the above referred questions.\n<\/p>\n
We
\n\thave heard Mr.Divatia, learned Counsel for the assessee and
\n\tMr.Manish Bhatt, learned Counsel for the Revenue.\n<\/p>\n
It
\n\tappears that on the factual aspects, there is neither any dispute
\n\tqua the existence of partial partition, nor any on the aspects of
\n\texistence of the fact of recognition of such partial partition.  The
\n\tpertinent aspect is that the position of over-riding title in view
\n\tof the partial partition amongst, inter se, three members of the HUF
\n\tnamely; Shri P.V. Thakar, his wife, Ranjanben P. Thakar and his
\n\tminor son, Dhruman P. Thakar was accepted in the earlier assessment
\n\tproceedings by the Department from A.Y. 1978-79 to A.Y. 1987-88.  It
\n\tis also not in dispute that the partnership firm came to be
\n\tdissolved and it remained as the sole proprietary concerned held by
\n\tShri P.V. Thakar.\n<\/p>\n
Mr.Divatia,
\n\tlearned Counsel appearing for the assessee, contended that in view
\n\tof the partial partition having been recognized and the consequence
\n\tof conversion as sole proprietary concern, the proportion of the
\n\tshares amongst three members of HUF would continue on the basis of
\n\t1\/3rd as it existed prior to the dissolution and,
\n\ttherefore, it was submitted that the error is committed by the
\n\tTribunal in restricting the share of the other two members of HUF
\n\tand assessing the shares of Shri P.V. Thakar to the extent of 50%.
\n\tIn the submission of Mr.Divatia, the Tribunal has committed error in
\n\tlaw in considering the consequence upon the dissolution.\n<\/p>\n
Whereas
\n\ton behalf of the Revenue, Mr.Bhatt, learned Counsel contended that
\n\tthe HUF could not be as the partner in a partnership firm and if the
\n\tKarta of HUF has joined the partnership firm, the income will be
\n\ttaxed at the hands of Karta in individual capacity, though
\n\tthereafter such income may be appropriated amongst the other members
\n\tof HUF.  He submitted that the earlier assessment during the period
\n\tfrom 1978-79 to 1987-88 was also contrary to the legal position and,
\n\ttherefore, the same was rightly not accepted by the A. O.  He
\n\tsubmitted that if the status of the Karta was not concerned in the
\n\trelationship of the partnership firm, the Tribunal has committed
\n\terror even in recognizing 1\/3rd share of each member
\n\tamongst 75% share of the HUF, which existed in the firm of Shri P.V.
\n\tThakar.  He also contended that if the properties, upon the
\n\tdissolution, are considered as individual share of the partner
\n\tnamely; Shri P.V. Thakar, none of the other members will have any
\n\tshare so far as the partnership firm is concerned and, therefore, it
\n\twas submitted that the Tribunal has committed error.\n<\/p>\n
In
\n\torder to examine the legal position, we may refer to the
\n\tConstitution Bench’s decision of the Apex Court in case of
\n\tCommissioner of Income Tax, Ludhiana v. Om Prakash,<\/a> reported in
\n\t1999(6) SCC, 349.  The Apex
\n\tCourt had an occasion to settle the issue in view of conflicting
\n\tdecisions of various High Courts, which, inter alia, included the
\n\tquestion of treatment to the income of Karta of HUF with reference
\n\tto the provisions of Section 64 of the IT Act.  The other part of
\n\tthe decision may not be much relevant and, therefore, it may not be
\n\trequired to be considered in the present decision. However, the
\n\trelevant observations made by the Apex Court can be extracted at
\n\tpara 19 of the said decision, which reads as under:-\n<\/p>\n
\t\u00fdSWhen
\n\ta Karta of a Hindu undivided family is a partner in a partnership
\n\tfirm, he has a dual capacity qua the partnership, he functions in
\n\this personal capacity and qua third parties, in his representative
\n\tcapacity.  Under Income Tax Act, when he is assessed in respect of
\n\tthe income derived by him from the partnership firm as a partner, it
\n\tis in his representative capacity as Karta of the Hindu undivided
\n\tfamily and not as an individual as such.  That is because his
\n\tcapacity vis-a-vis spouse\/minor children who are members of the
\n\tHindu undivided family is that of Karta and not as individual though
\n\tvis-a-vis other partners of the partnership firm he functions in his
\n\tpersonal capacity.  This being the position, the income of Karta’s
\n\tspouse\/minor child cannot be included in computation of his total
\n\tincome for that is the income of the Hindu undivided family and not
\n\this individual income.  Section 64 will be attracted only when an
\n\tassessee’s own income is being assessed and not that of Hindu
\n\tundivided family.  If a Karta is brought within the ambit of
\n\t\u00fdSindividual\u00fd\u00fd in Section 64(1), the share income of the spouse of
\n\tthe Karta and his minor children will, in effect, be included in the
\n\tincome of the Hindu undivided family, which is not what is
\n\tcontemplated by Section 64(1)(i) and (ii) and which, with respect,
\n\twe say has rightly been held to be impermissible by this Court in L.
\n\tHirday Narain v. ITO, CIT v. Harbhajan Lal and CIT v. Jayantilal
\n\tPrem Chand Shah.\u00fd\u00fd<\/p>\n
\tAs
\n\tsuch in the above referred decision, the Constitution Bench of the
\n\tApex Court has confirmed its earlier view in case of Charandas
\n\tHaridas & Anr. v. Commissioner of Income Tax, Bombay North,
\n\tKutch and Saurashtra,<\/a> ahmedabad & Anr.\u00fd\u00fd, reported at 39 Income
\n\tTax Report, p. 202.  Based on the above referred decision of law
\n\tsettled by the Apex Court, it can be said that as a consequence of
\n\tthe dissolution, the property as was held by Shri P.V. Thakar became
\n\tabsolute so far as the rights amongst the partners in the firm, but
\n\tthe effect of the over-riding title  already confirmed earlier qua
\n\this share will have to be recognized.  If the over-riding title is
\n\texisted in the property held by Shri P.V. Thakar, the consequence
\n\twould be that each member namely; Shri P.V. Thakar, his wife, Smt.
\n\tRanjanben and his minor son Dhruman P. Thakar will have equal share
\n\tnamely; 1\/3rd in the total property and such will be the
\n\tconsequence even in the income so derived therefrom.\n<\/p>\n
\tThe
\n\tTribunal, in principle, has accepted the over-riding title, however,
\n\tit appears to us that without there being any factual foundation,
\n\thas committed error in restricting such consequence to the extent of
\n\t75% of the profits of the business instead of 100%.  Further, there
\n\tis no factual foundation either from the order of the A.O. Or of
\n\tCIT(A) for making departure based on service rendered by Shri P.V.
\n\tThakar in his individual capacity.\n<\/p>\n
\tThe
\n\treliance placed by Mr.Bhatt, learned Counsel for the Revenue, upon
\n\tthe decision of the Apex Court in case of Commission of Income
\n\tTax v. Sunil J. Kinariwala is ill-founded inasmuch as it was a
\n\tcase for assessment of the interest by assessee, who was the partner
\n\tin the firm.  The assessment would stand on a different footing than
\n\tthat of Karta representing HUF in a partnership firm.  In case of
\n\tNational Wire Manufacturing Co. v. Commissioner of Income Tax
\n\treported at 253 ITR, p. 496 upon which the reliance is placed by
\n\tMr.Bhatt, learned Counsel for the Revenue, this Court was
\n\tconsidering the question as to whether the partner could claim the
\n\tremuneration in a firm on the premise that his capacity is as Karta
\n\tof HUF and not as the partner.  The relationship amongst the
\n\tpartner, inter se, would not get altered irrespective of his
\n\tcapacity as partner in individual capacity or as Karta of HUF.  Such
\n\taspect is not the subject matter in the present case and, therefore,
\n\tthe decision cannot be made applicable in the questions to be
\n\tconsidered by this Court.\n<\/p>\n
\tMr.Bhatt,
\n\tlearned Counsel for the Revenue, also relied upon the observations
\n\tof the Apex Court in case of Rasik Lal & Co. v. Commissioner
\n\tof Income Tax, reported at 229 ITR, p. 458 for contending that
\n\tif a person has become partner in his capacity as Karta of HUF, he
\n\tis not entitled to have a separate status and so far as the
\n\tPartnership Act is concerned, he is to be treated as in personal
\n\tcapacity and his capacity being Karta of HUF is of no relevance.\n<\/p>\n
\tAs
\n\tsuch the aforesaid decision is also a case for admissibility of the
\n\tadditional remuneration by way of commission by a partner, claiming
\n\this capacity as Karta of HUF.  Such observations may apply if the
\n\trights are to be considered, inter se, amongst the partners for
\n\tentitlement of the remuneration vis-a-vis Partnership Act and the
\n\tadmissibility of the expenses under the Income Tax Act.  Such is not
\n\tthe fact situation to be considered in the present questions coming
\n\tup before this Court.\n<\/p>\n
\tIn
\n\tview of the above, it is held that each Member of HUF being Shri
\n\tP.V. Thakar, his wife, Smt. Ranjanben P. Thakar, and his minor son,
\n\tDhruman P. Thakar, in view of the over-riding title, were entitled
\n\tto equal 1\/3rd share each.  Hence, we answer Question
\n\tNos.1 and 2 in favour of assessee, against the Revenue.\n<\/p>\n
\tSuch
\n\twill be the situation for question referred to at the instance of
\n\tRevenue inasmuch as Question No.1 is answered against the Revenue,
\n\tin favour of the assessee.\n<\/p>\n
\tAs
\n\tregards Question No.2 referred at the instance of Revenue is
\n\tconcerned, it appears to us that there is absolutely no factual
\n\tfoundation inasmuch as the Appellate Tribunal has not held that the
\n\tprovisions of Section 64 of the IT Act has no application in the
\n\tinstant case.  Therefore, as the question does not arise from the
\n\tjudgement of the Tribunal, the same is not required to be answered.\n<\/p>\n
\tThe
\n\tReference shall stand disposed of accordingly.<\/p>\n
\n\n \n\n\t\t\t\t\t\t\t(Jayant\nPatel, J.)\n \n\n \n\n\n \n\n25.6.2008\t\t\t\t\t\t(Akil\nKureshi, J.)\n \n\n\nvinod\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court P.V vs The on 25 June, 2008 Bench: Jayant Patel Kureshi, Akil Kureshi ITR\/46\/1999 16\/ 16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No. 46 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-171985","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nP.V vs The on 25 June, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-v-vs-the-on-25-june-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.V vs The on 25 June, 2008 - 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