MUTHA PARASRAM DHANAJI & CO, V. DCIT CEN CIR 1,

MA 640/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0067 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 11-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: H N MOTIWALLA
• Keywords: Rectification of order

Judgement Text

, , , , - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI . . !' , # .. , $ , % BEFORE SHRI R.K.GUPTA, JM AND SHRI R.S.SYAL, AM && ' ./ MA NO.640/MUM/2012 ( )*+ , / ARISING OUT OF ITA NO.4563/MUM/2010) ( #' - #' - #' - #' - / / / / ASSESSMENT YEAR : 2003-2004) M/S.MUTHA PARASRAM DHANAJI & CO. NARAYANWADI STATION ROAD KALYAN PAN : AAFFM5521R. THE DY.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 1 THANE. ( / // / APPLICANT) ' ' ' ' / VS. ( ./01/ RESPONDENT) 2 22 2 3 3 3 3 / APPLICANT BY : SHRI H.N.MOTIWALLA ./01 2 3 2 3 2 3 2 3 / RESPONDENT BY : MS.NEERAJA PRADHAN ' 2 +$ / / / / DATE OF HEARING : 15.03.2013. 45- 2 +$ / DATE OF PRONOUNCEMENT : 20.03.2013. 6 6 6 6 / / / / O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 (HEREINAFTER CALLED `THE ACT) HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 30 TH NOVEMBER, 2010 IN ITA NO.4563/MUM/2010 FOR THE CAPTIONED ASSESSMENT YEAR. MA NO.640/MUM/2012 M/S.MUTHA PARASRAM DHANAJI & CO. 2 2. THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TOWARDS PARA 32 OF THE IMPUGNED ORDER IN WHICH IT HAS BEEN RECORDED THAT: THE PARTNERS IN MY OPINION ARE NOT SEPARATE FROM THE FIRM. IT CANNOT BE SAID THAT SINCE THE DOCUMENTS WERE SEIZED FROM THE RESIDENCE OF THE PARTNERS NO ADDITION CAN BE MADE I N THE HANDS OF THE FIRM. THE LEARNED COUNSEL SUBMITTED THAT THE TRIBU NAL HAS EVENTUALLY RESTORED THE MATTER TO THE FILE OF ASSES SING OFFICER, AGAINST WHICH HE HAS NO GRIEVANCE. HIS ONLY OBJECTION IS TO THE FIRST LINE OF THE ABOVE EXTRACTED OBSERVATION THAT : THE PARTNER S IN MY OPINION ARE NOT SEPARATE FROM THE FIRM. RELYING ON THE JUDGMEN TS OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. A.W.FIGGIES & CO. [(1953) 24 ITR 405 (SC)] AND M/S.BIST & SONS V. CIT [(1979) 116 ITR 131 (SC)] , THE LEARNED AR CONTENDED THAT THE PARTNERS OF THE FIRM ARE DISTINCT ASSESSABLE ENTITIES. HE, THEREFORE, REQUES TED FOR EXPUNGING THE ABOVE LINE FROM THE IMPUGNED ORDER. IN THE OPPOSITI ON, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE LANGUAGE OF SECTION 188A TO STATE THAT THE PARTNERS CANNOT BE CONSIDERED AS INDEPENDENT OF FIRM. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE HONBLE SUPREM E COURT IN THE CASE OF MALABAR FISHERIES CO. V. CIT [(1979) 120 ITR 49 (SC )] HAS HELD THAT : A PARTNERSHIP FIRM UNDER THE INDIAN PARTNERSHIP AC T, 1932, IS NOT A DISTINCT LEGAL ENTITY APART FROM THE PARTNERS CONSTITUTING IT AND EQUALLY IN LAW THE FIRM AS SUCH HAS NO SEPAR ATE RIGHTS OF ITS MA NO.640/MUM/2012 M/S.MUTHA PARASRAM DHANAJI & CO. 3 OWN IN THE PARTNERSHIP ASSETS AND WHEN ONE TALKS OF THE FIRM'S PROPERTY OR THE FIRM'S ASSETS ALL THAT IS MEANT IS PROPERTY OR ASSETS IN WHICH ALL PARTNERS HAVE A JOINT OR COMMON INTEREST . SIMILAR VIEW HAS BEEN REITERATED BY THE HONBLE SUPREME COURT IN THE CASE OF N.KHADERVALI SAHEB & ANR. V. N.GUDU SAHIB (DECD.) & ORS. [(2003) 261 ITR 1 (SC)] . IN VIEW OF THE ABOVE REFERRED TWO JUDGMENTS OF TH E HONBLE SUPREME COURT ALONG WITH SIMILAR PROPOSITIO N LAID DOWN IN SEVERAL DECISIONS, IT IS APPARENT THAT UNDER THE IN DIAN PARTNERSHIP ACT, THE FIRM HAS NO DISTINCT LEGAL ENTITY APART FROM TH E PARTNERS CONSTITUTING IT. THE OBSERVATIONS MADE BY THE TRIBU NAL IN ITS ORDER TO WHICH THE LEARNED AR IS OBJECTING TO, ARE GENERAL, WHICH COINCIDE WITH THE VIEW EXPRESSED BY THE HONBLE SUPREME COUR T IN THE CASE OF MALABAR FISHERIES CO. (SUPRA) . 4. IT IS RELEVANT TO NOTE THAT WE ARE DEALING WITH AN APPLICATION FILED U/S 254(2) OF THE ACT. THIS PROVISION PROVIDE S FOR RECTIFICATION OF MISTAKE WHICH IS APPARENT FROM RECORD. IF THE ISSUE IS DEBATABLE OR THE MISTAKE IS NOT SO GLARING, THEN THERE CAN BE NO REC TIFICATION ON SUCH POINT. WE ARE UNABLE TO APPRECIATE THE STAND POINT O F THE LEARNED AR IN FILING THIS MISCELLANEOUS APPLICATION WHEN HE IS FAIRLY ADMITTING TO HAVE NO GRIEVANCE AGAINST THE DIRECTION OF THE BENC H FOR REMITTING THE MATTER TO THE FILE OF A.O. FOR A FRESH DECISION AFT ER GIVING DUE OPPORTUNITY TO THE ASSESSEE. IN VIEW OF THE FOREGOI NG REASONS, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE IN THE IMPUGNED ORDER IN TERMS OF SECTION 254(2) REQUIRING ANY RECT IFICATION AT OUR END. MA NO.640/MUM/2012 M/S.MUTHA PARASRAM DHANAJI & CO. 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 20 TH DAY OF MARCH, 2013. 6 2 45- 7'8 5 2 ! SD/- SD/- (R.K.GUPTA) (R.S.SYAL) # # # # / JUDICIAL MEMBER $ $ $ $ / ACCOUNTANT MEMBER MUMBAI ; 7' DATED : 20 TH MARCH, 2013. DEVDAS* 6 2 .#+9& : &-+ 6 2 .#+9& : &-+ 6 2 .#+9& : &-+ 6 2 .#+9& : &-+/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. ; () / THE CIT(A) - I, THANE. 4. ; / CIT 5. &>! .#+#' , , / DR, ITAT, MUMBAI 6. !? @ / GUARD FILE. 6' 6' 6' 6' / BY ORDER, /&+ .#+ //TRUE COPY// ) ) ) )/ // /A B A B A B A B ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI