COMMISSIONER OF AGRICULTURAL INCOME TAX Vs. ELEMBELLERY ESTATE

JUDGEMENT

(1.) These reference cases at the instance of the Revenue arise from the order of the Kerala Agricultural Income Tax Appellate Tribunal, Additional Bench, Kozhikode dated 21.11.1983. The relevant assessment years are 1975-76 and 1976-77. The accounting period relevant for the above assessment years are 1.4.1974 to 31.3.1975 and 1.4.1975 to 31.3.1976. Following are the questions referred by the Tribunal:

(2.) The respondent firm was an assessee on the files of the Inspecting Assistant Commissioner (Special), Agricultural Income tax and Sales tax, Kozhikode. It was being assessed in the statues of registered firm. During the accounting period relevant for the assessment year 1975-76, there was a change in the constitution of the firm due to death of one of the partners. In the place of the deceased partner his minor son was admitted to the benefits of the partnership. The firm applied for registration after making suitable modification in the deed of partnership. The assessing authority declined registration as per assessment order dated 16.12.1977 holding that the partnership deed was not valid in law as the minor was not represented by the guardian in the instrument of partnership. For the same reason renewal of registration for the assessment year 1976-77 was refused as per assessment order dated 20.1.1979. The assessee took up the matter in appeal before the Deputy Commissioner (Appeals). He found that the guardian of the minor who was admitted to the benefits of the partnership, had by a subsequent declaration made it clear that the minor had been admitted to the benefits of partnership with his consent and knowledge. He further held that the defect in the partnership deed stood cured and therefore, the firm was entitled to registration. The appeals were thus allowed by a common order dated 13.3.1981. Eventhough the State took up the matter before the Appellate Tribunal, by a common order dated 21.11.1983, the Tribunal upheld the decision of the first appellate authority.

(3.) On the Tribunal declining to refer questions for decision of this Court, Revenue filed OP No. 1253/1985 for compelling reference. Pursuant to the judgment of this Court in the above Original Petition, the Tribunal has referred the two questions mentioned above for decision of this Court.