COMMISSIONER OF INCOME TAX Vs. MOOLSINGH KARSONDAS

JUDGEMENT

(1.) BY this reference made under S. 256(1) of the IT Act, 1961, the following question has been referred at the instance of the Revenue for the opinion of this Court :

(2.) THIS reference relates to the asst. year 1974 75. The assessee, an individual, was partner in the firm of M/s Tulsidas Khimji (for short, 'the said firm') which was registered firm under the provisions of the IT Act, 1961. The assessee and his brother, one Shantu, are the sons of late Shri Karsondas, who died on 17th Feb., 1972 and was having 10% share in the said firm. After the death of said Karsondas, a new partnership deed was executed on 25th May, 1972 by the then parties in the said firm for carrying on business thereof and the assessee was a partner therein having share in the profits and losses to the extent of 32%. There were other four partners therein. The assessee claimed his said 32% share in the profits and losses of the said firm in different capacities as under :

(3.) ON 8th Jan., 1969, the assessee, then a partner in the partnership firm carried business in the firm name and style of 'M/s Tulsidas Khimji' had made a declaration impressing his 10 paise share out of 20 paise share which he then had with the character of his joint family property w.e.f. 22nd Oct., 1968. This was prior to reconstitution of the said firm by the said deed of partnership executed on 25th May, 1972, which was executed after the demise of the then partner, the said Karsondas. In the said reconstituted firm, the assessee has been partner in his individual capacity having 32% share in the profits thereof as stated in clear and unambiguous terms in the said deed of partnership dt. 25th May, 1972. Even in the statement of case drawn for the purpose of this reference, it is stated as under :