COMMISSIONER OF INCOME TAX Vs. CONFEITARIA DE JANEIRO

JUDGEMENT

(1.) THE following question has been referred to us by the Tribunal, Bangalore Division, Bangalore :

(2.) THE CED had sought reference in respect of two further questions, but according to the Tribunal, the), were covered by question No. 1 which is the sole question referred to us. We are concerned in this reference with the firm of M/s Confeitaria de Janeiro. This firm was stated to be constituted by a deed of partnership executed on 30th Dec., 1969. However, the stamp paper was purchased on 9th Jan., 1970. The firm was claimed to have come into existence on 1st April, 1969. The firm took over the business of bakery previously run by a BOI constituted by Andre Mascarenhas and his wife, Smt. Maria Luise D'Souza Mascarenhas. Under the provisions of the Portuguese Civil Code, the BOI or the communion, is it was as called under the provisions of the Code, bad not so far been dissolved, because the communion is dissolved only by demise or divorce of the constituents or by a Court order in exceptional circumstances. The communion at any rate continued undissolved on, the date on which the partnership was said to have come into existence.

(3.) THE ITO further opined that under the Portuguese Civil Code, the female constituent of the communion has no power of management. Accordingly, in the opinion of the ITO, she could not legally enter into any contract in respect of communion property unless duly authorised by a Court. Since, in the instant case, such authorisation has not been granted by a competent civil Court, the deed executed by her was in his opinion not valid.