KIKABHOY CHANDABHOY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE facts leading up to this reference may be briefly stated. THE assesses are a registered partnership firm carrying on business in the name of Kikabhoy Chandabhoy. Kikabhoy Chandabhoy himself was the sole proprietor of this firm and then there were changes in the constitution of that firm. He took Bai Fatima Bai, his daughter, as a partner in samvat year 1994 (1938-39) under an instrument dated October 13, 1938. Kikabhoy died on March 22, 1942. By an instrument of partnership dated March 29, 1942, a new partnership was brought into existence and that partnership was to commence business from April 1, 1942. That partnership consisted of the widow of Kikabhoy, his daughter and an outsider by the name of Abbasbhai Mohamedali. This partnership was dissolved on October 30; 1942.

(2.) IN the assessment of this firm, for the year 1942-43 a claim was made that the firm was entitled to relief both with regard to income-tax and super-tax under Section 25(3) and Section 25(4) of the Act. The contention was that there was either a discontinuance or a succession within the meaning of either of these two Sub-sections on April 1, 1942, on the death of Kikabhoy or a new partnership coming into existence on that date. The INcome-tax Officer who made the assessment rejected the contention of the assesses and refused to grant any relief either under Section 25(3) or Section 25(4) of the Act.

(3.) NOW, in my opinion, it is impossible to read the decision of the Tribunal as amounting to a finding that no super-tax was payable in respect of the broken period contemplated by Section 25(4) of the Act. The contention of the assesses before the Income-tax Officer was that they were entitled to relief both with regard to income-tax and super-tax. The Income-tax Officer came to the conclusion that the contention of the assesses was not well-founded and they were not entitled to any relief. All that the Income-tax Tribunal held in appeal was that the contention of the assesses was well-founded, that there was a succession and that they were entitled to relief under Section 25(4) of the Act.