Income Tax Reference (Lodg.) v. The Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICGTION INCOME TAX REFERENCE NO. 2 of 2005 in INCOME TAX REFERENCE (LODG.) NO. 542 OF 1984 M/s. Ishwar Bhuvan Hindu Hotel ... Applicant. vs. The Commissioner of Income Tax ... . Respondent Mr. P. J. Pardiwala for Applicant. Mr. Parag Vyas for Respondent CORAM: V. C. DAGAAND A. S. AGUIAR JJ.Date: 10[th] August, 2005. P. C. : 1. By this reference, the Tribunal has referred the following question oflaw for our opinion, arising out of order passed in I.T.A. No. 455 /Bom/82, for Assessment Years 1981-82 and 1982-83, under section256(1) of the Income-tax Act at the instance of the Revenue: (1) Whether on the facts and in the circumstances of thecase, a legal and valid partnership could be constitutedbetween Shri I.P. Barot representing his HinduUndivided Family as Karta and his son Shri Mahesh I.Barot, a member of the said HUF, notwithstanding thefact that Shri Mahesh I. Barot, had not contributed anycapital out of his separate and individual property butwas only a working partner? 2. Whether on the facts and in the circumstances of thecase, the assessee could be assessed to tax as an unregistered firm for the Assessment Year 1978-79 evenafter the share of one of the partners of the firm viz., ShriI. P. Barot, was already assessed in his hands? 2. Heard learned counsel appearing for the rival parties. Asimilar questions referred for our opinion in the case of the assesseeitself for the subsequent Assessment Years 1979-80 and 1980-81were already answered by us vide our order dated 27[th] June 2005passed in ITR 73 of 1988 in the case of Ishwar Bhuvan HinduHotel ... Applicant vs. The Commissioner of Income Tax .....Respondent [unreported]. 3. For the reasons recorded therein the first question isanswered in the affirmative i.e., in favour of the assessee, againstthe revenue. So far as the second question is concerned the partiesagree that in view of our answer to the first question, the secondquestion need not be answered. Hence second question is returnedunanswered by consent of parties. This reference accordinglystands disposed of in terms of this order, with no order as to costs. (V. C. DAGA J. ) (A. S. AGUIAR J.)