BANYAN AND BERRY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE Tribunal, Ahmedabad Bench 'B' by its order dt. 6th April, 1993, has referred the following questions of law to this Court for its decision which are said to have arisen out of the ITA No. 5230/Ahd/1991 relating to the asst. yr. 1988 -89 :

(2.) THE facts as appear from the statement of case and found by the Tribunal may be noticed at the outset. M/s Banyan and Berry was a partnership firm under a deed of partnership executed on 16th Nov., 1982 with sixteen partners. The business of the firm was of contractors, engineers and builders. A private limited company under the name and style of Banyan and Berry Construction Pvt. Ltd. was incorporated on 16th April, 1983. A transfer deed was executed between the firm M/s Banyan & Berry (hereinafter called, 'the firm') and M/s Banyan & Berry Construction Pvt. Ltd. (hereinafter called, 'the company') by virtue of which it was agreed that subject to provisions contained in the agreement, the firm would transfer to the company w. e. f. 1st July, 1984 all the assets and liabilities of the firm together with the goodwill thereof with an intention that the firm's business may be taken over as a running concern by the company w. e. f. 1st July, 1984. There was specific provision in the agreement to the effect that the benefit of additional claims relating to construction of dam at Mazam Irrigation Scheme would not stand transferred to the company. The relevant clause of the agreement reads as under :

(3.) FOR pursuing the said claim under the said dissolution deed, three of the partners were authorised to do all acts, deeds, matters and things about the recovery and relation of the said claims, on behalf of all.