COMMISSIONER OF INCOME TAX Vs. GUPTA BANDHU

JUDGEMENT

(1.) ON an application having been made under Section 256(2) of the Income-tax Act, 1961, by the Commissioner of Income-tax, Jabalpur, seeking reference of the question arising out of order dated September 30,1983, of the Income-tax Appellate Tribunal, Nagpur, in R. A. No. 81/Nag. of 1983, a direction was made by this court to refer the said question and, accordingly, the following question has been referred by the Tribunal for the opinion of this court :

(2.) THE assessee claimed the status of a registered firm for the year relevant to the assessment year 1976-77 but the Income-tax Officer treated the assessee as an unregistered firm. THE assessee had filed Form No. 12 on July 30, 1976, as required by Section 184(7), as it stood in the relevant year. THE Assessing Officer took due note of the fact that though the assessee in the assessment year in question had obtained excise contracts in the name of its individual partners, Shri Nageshwar Prasad Gupta and Shri Bindeshwar Prasad Gupta, but as in contravention of Rule VI of the general conditions of the licence framed under Section 62 of the M. P. Excise Act, 1915, providing that no privilege of supply or sale shall be sold, transferred or sub-leased nor shall the holder of such privilege enter into partnership in working of such privilege without the written permission of the Collector, had executed the contract in the name of the firm, the firm was not entitled to registration. THE Assessing Officer also considered the fact that even though the assessee claimed to have made an application to the Collector for execution of the contract in the name of the partnership, no endorsement was made on the licence granted under the said Excise Act, which indicated that the request had been turned down. Thus, relying on the decisions in CIT v. Pagoda Hotel and Restaurant [1974] 93 ITR 271 (MP) and CIT v. Sheonarayan Hamarayan [1975] 100 ITR 213 (MP), the said conclusion was reached by the Income-tax Officer.

(3.) AGAINST the order of the Tribunal, the Revenue preferred an application under Section 256(1) for reference of the question arising therefrom to this court, which was dismissed but on an application having been made under Section 256(2) of the Act to this court, a statement of the case was called for and hence the above question has been referred for the opinion of this court.