Delhi H.C : The firm was a genuine firm and that the income returned by he firm was assessable in its hands and had to be excluded from the assessment of the company.

Counsel Appeared

D.K. Jain & R.C. Pandey, for the Revenue : M.L. Verma, for the Assessee

BY THE COURT :

These three applications under s. 256(2) of the IT Act, 1961, can be disposed of by a common order. IT Case No. 223 of 1984 relates to the company and the other two to a firm. The question sought to be raised by the Department is whether the Tribunal was right in holding that the firm was a genuine firm and that the income returned by he firm was assessable in its hands and had to be excluded from the assessment of the company. This obviously is a question of fact (vide Ratanchand Darbarilal vs. CIT (1985) 48 CTR (SC) 349 : (1985) 155 ITR 720 (SC) and Ladhu Ram Taparia vs. CIT (1962) 44 ITR 521 (SC)). The present case does not fall within the ratio of the Supreme Court in the case of S. P. Gramophone Co. vs. CIT (1986) 51 CTR (SC) 104 : (1986) 158 ITR 313 (SC), relied upon by the counsel for the petitioner.

2. The main argument of counsel for the petitioner was that there was no ostensible object or purpose in the creation of the firm and that it had been really created with a view to divert the profits or a portion of the profits of the company. In our opinion, this is essentially a question of fact. The Tribunal has taken into consideration the fact that the firm’s genuineness had been accepted in an earlier assessment year after careful examination by the IAC. The Tribunal has also found that the firm did render services and that there were also stranger partners in the firm who are not associated with the company or its directors in any way. We also find that the CIT (A) had given a clear finding that the net income of the firm during all the years when it was in existence was a paltry sum and that having regard to this consideration also, it was not likely that the persons in control of the company would have floated the firm with a view to avoid tax. We are of opinion that there was material before the Tribunal on which it could come to the conclusion that the firm was genuine and that this Court cannot interfere under s. 256(2) with such a finding. We, therefore, dismiss these applications but in the circumstances of the case, we make no order as to costs.

[Citation : 175 ITR 409]